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Plaintiffs,
v.
HCA-HEALTHONE LLC, d/b/a Swedish Medical Center,
HEALTHONE OF DENVER, INC., and HOSPITAL
CORPORATION OF AMERICA,
Defendants.
James W. Avery
AVERY LAW FIRM
44 Cook Street, Suite 100
Denver, Colorado 80206
Phone: 303-840-2222
Fax: 303-328-2976
averylawfirm@gmail.com
Attorney Reg. #13037
*Counsel of Record
Case Number:
Division:
Courtroom:
COMPLAINT
Plaintiffs, by and through their attorneys, for their claims against Defendants, allege as
follows:
I. Nature of Case
1. This case involves an indescribable nightmare imposed on a vulnerable group of
peoplehospital patients undergoing surgery. Defendants employed a long-time drug
addict, Rocky Allen, as a surgical technician without adequately conducting a
background check, without adequately supervising him, and without putting in place
adequate safeguards to protect the patients entrusted to their care. Mr. Allen used his
position to take intravenous pain medication intended for surgery patients to satisfy his
drug addiction, replaced the syringe full of pain medication with a syringe full of saline
solution, and then re-used the needle he used to inject himself; thereby exposing
patients to communicable diseases he apparently carried, including HIV and hepatitis B
and C. As a result, thousands of unsuspecting and vulnerable patients received letters
from Defendants disclosing that they should be tested for HIV and hepatitis. Depending
on the outcome of these tests, Plaintiffs were left with at least one of three outcomes:
(1) they suffered extraordinary anxiety awaiting a negative test result, but were still
instructed to get re-tested; (2) they suffered extraordinary anxiety awaiting a positive
test result and now suffer from a diagnosis of HIV and/or hepatitis; and/or (3) they
received saline rather than pain medication in connection with their surgery and suffered
extraordinary pain and suffering as a result of not receiving pain medication.
II. Jurisdictional Allegations
2. Jurisdiction is appropriate in this Court because Defendants committed tortious
acts in the State of Colorado.
3. This Court has personal jurisdiction over Defendants because each of them
maintain sufficient minimum contacts with the State of Colorado and have purposefully
availed themselves of the laws of this State.
4. Venue in this district is proper because defendant HCA-HealthONE resides in
Denver County, Colorado and all three of the Defendants maintain their registered
agent in Denver County, Colorado.
5. This case is not removable to federal court because the Complaint does not raise
federal question jurisdiction, all plaintiffs are not diverse from all defendants, and no
other basis for removal exists.
III. The Parties
A. Plaintiffs.
6. Plaintiffs are each natural persons who reside in and are citizens of Colorado,
Arizona, Florida and Kansas.
7. Plaintiffs Gary Anderson, Jon Anderson, Dawn Avery, Frank Bishop, Sandra
Blowers, Robin Brown, John Chesney, Marie Coles, Patrick Evans, Gary Fields, Denise
Faustino, Samantha Gagliano, Kim Hartman, Paul Hattery, Nikki Miles, Michael Moreau,
Valeri Pelc, Desiree Phillips, Jane P. (a minor), Monica Robinson, Michele Savage,
William Smith, Traci Stancil, Randy Swearingen, John Valdez, Lurlene Wayman, Mary
Wiese, Anthony Weaver, Margaret Wegrzyn, LiYing Yi, and Jack York each underwent
medical treatment at Swedish Medical Center between August 17, 2015 and January 22,
2016, and received the letter described below instructing them to be tested for HIV and
hepatitis.
8. Plaintiffs Leslie Evans, Martha Anderson, James Blowers, Michelle Fields and
Mark Wiese are the spouses or significant others of Plaintiffs who underwent medical
procedures at Swedish Medical Center between August 17, 2015 and January 22, 2016.
B. Defendants.
9. Defendant HCA-HealthONE LLC, d/b/a Swedish Medical Center (Swedish
Medical Center), is a Colorado limited liability company with its principal place of
business in Denver, Colorado and that owns and operates a hospital in Englewood,
Colorado.
10. Defendant HealthONE of Denver, Inc. (HealthONE) is a Colorado corporation,
with its principal place of business in Nashville, Tennessee. HealthONE owns and
operates a number of hospitals, ambulatory surgery centers, and diagnostic imaging
centers, including defendant HCA-HealthONE LLC, in the Denver metropolitan area.
11. Defendant Hospital Corporation of America (HCA) is a Delaware corporation
with its principal place of business in Nashville, Tennessee. HCA owns and operates
defendant HealthONE.
IV. General Allegations
12. Rocky Allen, a former employee of each of the Defendants, was indicted on felony
charges under 18 U.S.C. 1365(a) of Tampering with a Consumer Product and 21
U.S.C. 843(a)(3) and (d)(1) for Obtaining a Controlled Substance by Deceit or
Subterfuge by a federal grand jury in Denver on February 20, 2016. The Indictment, a
copy of which is filed in the United States District Court in the District of Colorado as
Document No. 1, in Case No. 16-cr-67-RM-1 charges:
On or about January 22, 2016 in the State and District of Colorado, the
defendant, ROCKY ALLEN, with reckless disregard for the risk that
another person will be placed in danger of bodily injury, and under
circumstances manifesting extreme indifference to such risk, tampered
and attempted to tamper with a consumer product, to wit: a syringe
containing Fentanyl Citrate, that affected interstate commerce, by
j.
35. Plaintiffs incorporate by reference the preceding paragraphs as if fully set forth
herein.
36. The latency period for the manifestation of a bloodborne pathogen is estimated to
be anywhere from several weeks to six months after exposure.
37. Plaintiffs have been exposed to toxic substances, including bloodborne
pathogens, at a higher rate than, or in a substantially more dangerous manner than, the
general population. Plaintiffs exposure levels are therefore substantial in nature.
38. Plaintiffs exposure to bloodborne pathogens was caused by Defendants
negligence as follows:
a. Failing to properly investigate Rocky Allen before hiring him;
b. Failing to properly supervise Rocky Allen after hiring him;
c. Failing to properly secure and maintain control of controlled substances;
d. Failing to properly secure areas where controlled substances could be
accessed; and
e. Failing to timely warn Plaintiffs of their potential increased risk to bloodborne
pathogens as the result of Rocky Allens employment.
39. Plaintiffs exposure to bloodborne pathogens was proximately caused by
Defendants negligence as described herein.
40. Monitoring procedures exist that make the detection of bloodborne pathogens
possible.
41. Bloodborne pathogens are capable of early detection by way of existing
scientific methods including blood testing.
42. Because bloodborne pathogen screening is not conducted in the absence of
exposure, the prescribed monitoring regime is different from that normally
recommended in the absence of exposure. Plaintiffs require specialized screening and
care not within the purview of routine medical exams.
43. According to contemporary scientific principles, the prescribed monitoring regime
is reasonably necessary to permit early diagnosis of a bloodborne pathogen leading to
benefits in treatment, management, and prevention or mitigation of long-term health
consequences, including death.
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Respectfully Submitted,
s/ James W. Avery
James W. Avery
AVERY LAW FIRM
44 Cook Street, Suite 100
Denver, Colorado 80206
Phone: 303-840-2222
Fax: 303-328-2976
averylawfirm@gmail.com
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