At least two private civil lawsuits have been filed against Asante Rogue Regional Medical Center in Medford, Oregon, in connection with a fentanyl diversion and related indictment of a former nurse. A wrongful death suit seeks $11.5 million on behalf of a deceased patient and names the hospital and nurse as defendants. A second $303 million medical malpractice and wrongful death suit names only the hospital as a defendant. These suits are the latest example of the ever-expanding risks healthcare providers face in the wake of a controlled substance diversion.
What Happened
- In June 2024, a former hospital nurse was arrested and charged with 44 counts of second-degree assault after she allegedly stole fentanyl for her personal use and replaced it with non-sterile tap water in patients' intravenous drips, causing deadly bacterial infections in the hospital's Intensive Care Unit (ICU) from July 2022 to July 2023. Fourteen of the 44 victims named in the indictment are deceased.
- State law enforcement discovered the fentanyl diversion while investigating reports by the hospital of potential opioid theft by the former nurse and an alarming increase in the number of ICU patients suffering from uniquely water-born bacterial infections.
- As required by federal and state laws, the hospital reported the incidents to federal and local law enforcement, the state Board of Nursing, and the affected patients and their representatives.
Cascading Liability for Controlled Substances Diversion Incidents
- Drug Enforcement Administration (DEA) registrants are required to report any tampering, theft, or significant loss of controlled substances, even when they may ultimately be the victim of theft themselves. Government enforcement actions and patient-generated lawsuits often begin as a result of this required self-reporting.
- As we have reported, the government has broadened its interpretation of provider liability for violations of the Controlled Substances Act to include the False Claims Act and its punitive penalty scheme.
- As the case against Asante Rogue Regional Medical Center makes clear, on top of any civil or criminal government liability, providers may also be forced to litigate or settle high-dollar private suits by patients and employees and face the public scrutiny that follows a controlled substances diversion.
- Increased risks from public and private parties reinforce the importance of an accurate and immediate response to a controlled substances diversion incident and the costly consequences of delayed or inaccurate responses.
Takeaways
- The Oregon hospital faces the costs of defending both lawsuits, in addition to any civil, criminal, or administrative government enforcement resulting from the fentanyl diversion.
- Multiple avenues for potential government and private liability highlight the importance of a thorough and well-designed investigation in connection with any report to state or federal authorities or to patient families.
- Experienced legal counsel can help providers navigate these issues and conduct thorough investigations under privilege, where appropriate.
Please contact the authors or reference our Controlled Substances Enforcement & Diversion Practice capabilities if you have questions about how the lawsuits may impact your business.
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