Swedish Medical Center faces class-action lawsuit in drug contamination scandal

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ENGLEWOOD, Colo. -- Swedish Medical Center has been served with a class-action lawsuit filed by three former patients as a result of a drug contamination scandal.

The hospital said late Tuesday night it took swift and appropriate action when this incident occurred, and intends to vigorously defend itself.

Former surgical technician Rocky Allen is at the center of the scandal. He was fired from four hospitals before getting hired by Swedish Medical Center in August.

RELATED: Lawsuit filed against Swedish Medical Center

Each time he was let go because of drug use, usually for acquiring Fentanyl illegally at his workplace.

“Our staff reacted swiftly and appropriately to  report this incident to multiple authorities and to notify patients as no one had previously, even knowing it would result in intense publicity and lawsuits from plaintiff's attorneys seeking to take advantage of this unfortunate situation for their own monetary gain," Swedish said in a statement. "We will defend ourselves vigorously.”

So why didn’t a background check by Swedish catch Allen’s sordid past before he was hired? A Problem Solvers investigation found Allen did not report past terminations when he registered to be a surgical tech in Colorado despite a rule that requires self-reporting of past disciplinary actions taken against surgical technicians, including terminations.

The Department of Regulatory Agencies, which maintains Colorado’s registry, doesn’t perform background checks. Instead, that responsibility falls on employers, in this case hospitals.

But employment law experts said most employers will only say if a past employee worked for them and for how long. Fear of litigation means former employers will almost never say if an employee was fired, let alone why.

“That’s just ridiculous. It’s stupid and dumb. They should have done a better job at his background search," said a Swedish female patient whose identity is being protected.

She’s one of nearly 3,000 patients at Swedish Medical Center being tested for hepatitis and HIV after it was revealed Allen has a blood-borne pathogen disease.

“Am I supposed to trust a hospital, I don’t know?” the female patient asked.

Until Swedish Medical Center had Allen arrested, his criminal arrest record was clean. Hospitals in Washington, California and Arizona fired Allen but never reported him to local police.

“I think they were concerned more for the reputation of their hospital than they were about their patients and possibly future exposure,” said Dr. Jason Sutherland, a pathologist at Swedish.

He said only his hospital did what all the previous ones should have done.

Scripps Green Hospital in San Diego reported Allen to the Drug Enforcement Agency, but FOX31 Denver obtained the reporting document that showed Scripps never provided Allen’s name or reported the theft of Fentanyl to police, so the DEA never acted.

“I think it points out a number of issues, gaps in the system,” said Steven Summer, president and CEO of the Colorado Hospital Association.

Summer pointed out Colorado is the only state in the nation that has a law giving health care providers immunity from civil liability if they tell other hospitals about an employee’s past “drug diversion, drug tampering, patient abuse, violation of drug or alcohol policies of the employer, or crimes of violence."

“Obviously, I'd be concerned that other states don't have the checks and balances that Colorado has,” Summer said.

Allen was job hopping across state lines so Swedish couldn’t use the Colorado law to obtain specific information about his employment history.

State Rep. Joann Ginal, D-Fort Collins, is working on legislation to strengthen Colorado’s registry for surgical techs but said there needs to be a federal database employers can access.

“How do we cross-talk between states? This is another issue that we have to look at,” Ginal said.

Summer said the Colorado Hospital Association is talking with other states about creating a federal law or at least a compact between Western states that would allow hospitals to talk to each other about past employees so people like Allen don’t slip through the cracks.

On Friday, Allen’s defense attorney filed a motion in federal court to delay his drug diversion trial from April 25 to July 18.

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