Judges have issued competing rulings over the validity of lawsuits filed by patients who fear they may have been infected by a former surgical technologist at Swedish Medical Center who stole painkiller syringes while he was HIV positive.
Denver District Court Judge Jay Grant on Thursday dismissed one of the lawsuits because free blood tests offered by Swedish had not found infections among those suing. He ruled that the lack of detected infections meant sufficient injury had not been alleged for those who filed the lawsuit to pursue their claims.
“While plaintiffs state there is a ‘statistically significant’ chance the plaintiffs may test positive for the diseases in the future; the court finds this is too uncertain of a possibility to confer standing on the plaintiffs,” Grant ruled.
On Monday, Denver District Court Judge Catherine Lemon found the opposite, ruling that sufficient injury was alleged to allow another lawsuit to proceed. She found that those suing may still have undiagnosed diseases from contaminated syringes. Further, she ruled the patients had alleged that the theft of their pain medication also caused them to experience great pain during their surgeries. She also found that those suing had alleged harm from having to undergo additional blood testing.
Lemon found that immediate impact did not need to be found to establish an alleged injury. She said heightened risk of contracting a deadly disease could create an unreasonable risk of physical harm.
The competing rulings may be headed to the Colorado Court of Appeals. Joseph Sauder, a Pennsylvania lawyer representing those whose lawsuit was dismissed, said the legal team was still considering whether to file an appeal. James Avery, a lawyer on the case that still is pending, said he continues to prepare for trial.
Nicole Williams, a spokeswoman for Swedish Medical Center, was not available for immediate response.
The lawsuits were filed after the firing by Swedish of Rocky Allen, after he was indicted on federal drug theft charges. Allen, who pleaded guilty in July to the two-count federal indictment, is scheduled to be sentenced in October.
Prosecutors have said Allen was fired from at least five health care facilities in California, Arizona and Washington before Swedish hired him in August. He was court-martialed in 2011 for stealing fentanyl while enlisted in the Navy and stationed at the hospital in Kandahar, Afghanistan.
Prosecutors have said in court documents that Allen was able to continue to find jobs in the health care field by lying about his addiction, drug thefts and work history.
Swedish has offered free medical testing to about 3,000 patients to determine whether they contracted HIV, hepatitis B or hepatitis C. So far, no public disclosures have been made that Allen infected any of those patients.
