May 25, 2018
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NH judge hears dispute over hospital records in hepatitis C outbreak

By HOLLY RAMER, The Associated Press

CONCORD, N.H. — A judge is deciding what limits, if any, to impose on state public health officials seeking patient records tied to the hepatitis C outbreak at Exeter Hospital.

Former hospital worker David Kwiatkowski has been charged with stealing drugs from the hospital’s cardiac catheterization unit and replacing them with tainted syringes that were later used on patients.

Thirty-two Exeter Hospital patients have been found to have the same strain of the liver-destroying virus Kwiatkowski carries, and information gathered by public health officials suggests more are possible, attorney Jeanne Herrick said Wednesday.

Herrick was representing the state at a hearing on a request by Exeter Hospital to prohibit the state from accessing further medical records unless it is more specific in its requests. Scott O’Connell, the hospital’s lawyer, called the state’s actions abusive and over the top and insisted the hospital would be violating both state and federal law if it provided investigators unfettered access to its records system.

“Once they have access to the computer, they can surf to wherever they want to,” he said. “To give them unlimited access to sit in front of a computer and look anybody they want — your records, my records — that’s outrageous.”

The hospital is willing to provide paper copies of patient records if the state requests a record by name and specifies the time frame and portion of the record it wants to review. That would give the hospital time to make sure confidential information that is specifically protected by law — such as mental health or substance abuse treatment — is redacted, O’Connell said.

While both sides agreed that the state is legally allowed to collect only the minimum amount of information necessary for its investigation, the hospital argued it should be the gatekeeper in terms of allowing access to that information. But Herrick said the state has a right to broad access to review information, while extracting only the minimum amount necessary.

That’s what happened from the time the investigation started in May until July, when the hospital abruptly stopped cooperating, she said.

“In the past two months, Exeter Hospital has made a concerted effort to disrupt the investigation,” she said. “Exeter Hospital is a business, and there are good business reasons for them to want no new cases [of hepatitis C] and no further investigation of this matter.”

Asked why the state couldn’t request individual patient records by name, Herrick said she was concerned that hospital officials would tamper with them before providing copies. O’Connell called both that suggestion and the notion that the hospital was obstructing the investigation outrageous.

“I’ve said at least five times today, we will give them the record of every patient they identify. And it’s just malarkey, to quote our sitting vice president — that they can’t tell us the names of people we’ve already given them information about.”

Merrimack County Superior Court Judge Richard McNamara, who took the matter under advisement, compared the situation with law enforcement wiretapping. In those cases, the person in charge of secretly recording a telephone conversation has an obligation to stop the recording and minimize the invasion of privacy if the conversation turns to a medical issue or something else unrelated to the criminal activity being investigated, he said.

O’Connell rejected that comparison and said the hospital should not have to “rely on the good graces of our esteemed public employees that they’re not going to violate [patient] privacy.”

Kwiatkowski, a traveling medical worker whom prosecutors describe as a “serial infector,” was hired in Exeter in April 2011 after working in 18 hospitals in Arizona, Georgia, Kansas, Maryland, Michigan, New York and Pennsylvania.

He moved from hospital to hospital despite having been fired twice over allegations of drug use and theft, and thousands of patients in those states are being tested to see if they, too, were infected with hepatitis C, a sometimes life-threatening virus. A handful of patients in Kansas have been found to carry the same strain Kwiatkowski carries.

Kwiatkowski, who has told authorities he did not steal or use drugs, has pleaded not guilty to illegally obtaining drugs and tampering with a consumer product.

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