Negligence, Negligence Per Se, Duty of Care to Remote Plaintiff

Walters v. UPMC, 144 A.3d 104 (Pa. Super. 2016), allocatur granted, 15, 16, 17, 18, 19, 20, 21 and 22 WAP 2017 (Majority) (Dissent)


The Supreme Court granted UPMC’s allocatur petition to decide:

(1) Whether the Superior Court’s holding directly conflicts with this Court’s holdings in Seebold v. Prison Health Services, Inc., 57 A.3d 1232 (Pa. 2012), and Althaus v. Cohen, 756 A.2d 1166 (Pa. 2000), admonishing courts of the Commonwealth to exercise great restraint when considering the creation of new duties, especially duties to the public-at-large?

(2) Whether the Superior Court’s holding directly conflicts with precedent in Estate of Witthoeft v. Kiskaddon, 733 A.2d 623 (Pa. 1999), which declines to impose limitless liability on healthcare providers for injuries allegedly caused by the provider’s failure to report to government a patient’s dangerous condition, and has profound public policy implications which mandates prompt and definitive resolution by the Supreme Court?

(3) Whether the Superior Court’s creation of a new duty to report based on the reporting requirements of the federal Controlled Substance Act (Act) conflicts with the intent of the Act and is against the public policy of this Commonwealth?

The Supreme Court also granted Maxim’s allocatur petition to decide:

(1) Whether, in an issue of first impression and of critical statewide importance, the Superior Court Majority violated longstanding precedent and deviated from existing law when it imposed upon a staffing agency a duty in negligence requiring it to protect the public against intentional acts of a former employee, in circumstances where: (i) there was no allegation that the staffing agency had notice that the employee had committed the same or similar offenses while employed with the agency; and (ii) the intentional acts occurred in a different state, two years after the employee’s employment relationship with the staffing agency ended?

(2) Whether, in an issue of first impression and statewide importance, the Superior Court Majority violated well-established rules of civil procedure and longstanding precedent by supplying facts, and then relying on those facts for its conclusions, in circumstances where those facts clearly do not appear in Plaintiffs’ Complaint?


Complaint alleged that a radiologic technician employed by Maxim, a hospital staffing agency, and UPMC, where the technician was posted in 2008, failed to report technician’s practice of stealing syringes of fentanyl, injecting himself, and refilling the syringes with saline and replacing them. Fellow employees observed the behavior and UPMC’s investigation confirmed it.  UPMC banned the technician from all UPMC facilities but did not report the diversion of drugs to the DEA as required by statute or take other action. Technician thereafter worked at 8-10 other hospitals in other states. In 2010, in a hospital in Kansas, a cardiac patient contracted hepatitis C, allegedly from needles that technician, who was infected with hepatitis C, “substituted.”  Patient’s estate sued UPMC and Maxim, alleging: “UPMC knew that [technician] was a traveling radiologic technician and knew or should have foreseen that thousands of patients around the country would be endangered if UPMC failed to take steps to prevent [him] from continuing his illicit conduct.” Plaintiffs alleged breach of common law duty of care and negligence per se for violating the DEA statute.

Both Maxim and UPMC filed preliminary objections in the nature of a demurrer alleging that, even accepting all well-pleaded facts as true, they had no duty to Plaintiffs that would support a cause of action for negligence. UPMC maintained that, since there was no special relationship between itself and Plaintiffs or itself and the technician, no duty could be inferred from the general duty imposed on all persons not to place others at a risk of harm. Furthermore, it warned that imposition of a duty on the facts pleaded was “not only contrary to established law but would subject hospitals in this Commonwealth to limitless liability.” It contended further that the negligence per se claim failed because the statutes cited by Plaintiffs were not designed to protect them, as opposed to the general public, from the harm alleged.

The trial court sustained the preliminary objections and dismissed the complaint.  Superior Court vacated the sustaining of the demurrer as to both UPMC and Maxim based on the lack of a common law duty of care, but affirmed that portion sustaining the demurrer on the negligence per se claim against UPMC.

In finding a common law duty of care as to UPMC and Maxim, Superior Court applied and analyzed each of the five factors of the Althaus test:

(1) the relationship between the parties;

(2) the social utility of the actor’s conduct;

(3) the nature of the risk imposed and foreseeability of the harm incurred;

(4) the consequences of imposing a duty upon the actor; and

(5) the overall public interest in the proposed solution.

In rejecting the claim against UPMC that failure to report the violation of the Controlled Substances Act was a separate basis for liability on a negligence per se theory, the court reasoned:

It is apparent that the regulations in question are calculated to ensure that controlled substances in the possession of registrants are properly secured. The prohibition against the employment of convicted drug offenders indicates an awareness of the potential for drug abuse by health care practitioners, workers, researchers, and pharmacists with lawful access to drugs through their employment. The reporting requirement is intended to alert the DEA when legitimately possessed controlled substances are diverted so that it can investigate and prosecute the individuals responsible.

We are persuaded that the reporting requirement was intended to protect the public from the dangers associated with the diversion, trafficking, and abuse of controlled substances in the possession of registrants, i.e., hospitals and pharmacies and other licensed persons and entities, by subjecting diverters to criminal prosecution. As a registrant under the Act, UPMC was allegedly required to report to the DEA [the technician’s] known diversion and substitution of its controlled substances. Its failure to do so in 2008 effectively foreclosed any DEA investigation and prosecution of [the technician] at that time. Such reporting was intended to protect against the harmful consequences of drug abuse, including the type of harm that resulted herein.

Nonetheless, we agree with the trial court that there is no indication in the CSA or its regulations that the reporting requirement was intended to protect a particular group to which Plaintiffs belonged. The CSA’s comprehensive enforcement scheme is calculated to protect the public from the dangers resulting from the diversion of drugs and their abuse. We note that the CSA does not expressly provide for a private right of action but that fact is not dispositive of the statute’s use as the basis for negligence per se. However, absent herein is any indication that the purpose of the statute is to protect a particular group of individuals encompassing Plaintiffs.15 See K.H. ex rel. H.S. v. Kumar, supra at 1087-90 (citing J.E.J., supra at 586, for proposition that while a violation of the Child Protective Services Law (“CPSL”) could serve as the predicate for a negligence per se claim, the minor-plaintiff fell outside the class of children protected by the statute as he was not connected to the entity bearing the mandatory reporting obligations). For this reason, we affirm the trial court’s order sustaining the demurrer as to Plaintiffs’ negligence per se claim against UPMC.

144 A.3d at 124.

Judge Jenkins dissented, reasoning that plaintiffs failed to plead a cause of action in common law negligence against Maxim, but did make out a case of negligence per se against UPMC for failure to report.

For more information, contact Kevin McKeon or Dennis Whitaker.