1 See Berge, Keith H. et al., Diversion of Drugs Within Health Care Facilities, a Multiple-Victim Crime: Patterns of Diversion, Scope, Consequences, Detection, and Prevention, 87 Mayo Clinic Proc. 674, 674 (2012)CrossRefGoogle ScholarPubMed; Larance, Briony et al., Definitions Related to the Use of Pharmaceutical Opioids: Extramedical Use, Diversion, Non-adherence and Aberrant Medication-Related Behaviors, 30 Drug & Alcohol R. 236, 239 (2011).CrossRefGoogle Scholar

2 See Baldisseri, Marie R., Impaired Healthcare Professional, 35 Critical Care Med. S106, S106 n.2 (2007)CrossRefGoogle ScholarPubMed.

3 See Abramson, Mark A. et al., Exposing the “Dirty Little Secret”: Random Drug Testing of Health Care Workers in the Wake of the Hepatitis C Outbreak, 54 N.H.B.J. 10, 11-12 (2014)Google Scholar; see also Berge et al., supra note 1, at 675-76; Cheryl Clark, UCSD, Doc Who Overdosed in Hospital Bathroom Face Lawsuits, Medpage Today (Feb. 10, 2020), https://www.medpagetoday.com/special-reports/exclusives/84812 [https://perma.cc/YHA4-7LSB]; Kirk Johnson, Denver Woman Sentenced in Hepatitis Infection Case, N.Y. Times (Feb. 24, 2010), https://www.nytimes.com/2010/02/25/us/25hepatitis.html [https://perma.cc/Z537-HS7Y].

4 Abramson et al., supra note 3, at 11-12.

5 Id.

6 Id.

7 Id. at 10.

8 Id. at 12; see also Press Release, U.S. Dep’t of Justice, U.S. Attorney’s Office, Dist. of N.H., Former Employee of Exeter Hospital Sentenced in Connection with Widespread Hepatitis C Outbreak (Dec. 2, 2013), https://www.justice.gov/usao-nh/pr/former-employee-exeter-hospital-sentenced-connection-widespread-hepatitis-c-outbreak [https://perma.cc/YC4Z-QSA4].

9 Abramson et al., supra note 3, at 10; see also Press Release, U.S. Dep’t of Justice, U.S. Attorney’s Office, Dist. of N.H., supra note 8 (stating that Kwiatkowski’s sentence was a result of “his pleas of guilty to eight counts of obtaining controlled substances by fraud and eight counts of tampering with a consumer product” and that the “sentence is believed to be the highest sentence ever received for a crime of this nature”).

10 See Abramson et al., supra note 3, at 12-13; Berge et al., supra note 1, at 675-76; Clark, supra note 3; Johnson, supra note 3.

11 What is the U.S. Opioid Epidemic?, U.S Dep’t Health & Hum. Servs. (Sept. 4, 2019), https://www.hhs.gov/opioids/about-the-epidemic/index.html [https://perma.cc/H36A-JV8Y].

12 Id.

13 Ctr. for Disease Control, 2018 Annual Surveillance Report of Drug-Related Risks and Outcomes 6, 10 (2018).

14 See generally Baldisseri, supra note 2 (analyzing the literature on substance abuse disorders in health care professionals and recognizing the reluctance to acknowledge the problem).

15 Id. at S108.

16 O’Connor, Patrick G. & Spickard, Anderson Jr, Physician Impairment by Substance Abuse, Med. Clinics N. Am. 1037, 1042 (1997)Google Scholar.

17 See id. at 1042.

18 Baldisseri, supra note 2, at S109.

19 Berge et al., supra note 1, at 675.

20 Id. at 676.

21 See, e.g., Clark, supra note 3.

22 See Berge et al., supra note 1, at 676-77. A particularly stark example of the consequences of drug diversion involved an anesthesiologist at a San Diego hospital system. Clark, supra note 3. The anesthesiologist, diverting drugs, gave patients inadequate dosages of anesthesia allegedly leading to painful surgical awareness, during which the patients are partly awake and can feel what is occurring during surgery but sedated enough that they cannot speak or move. Id. Ironically, the anesthesiologist’s mistaken identification of a drug led him to divert a much more powerful drug than anticipated, resulting in him being caught after he passed out in the bathroom. Id.

23 Lien, Cynthia A., A Need to Establish Programs to Detect and Prevent Drug Diversion, 87 MAYO CLINIC PROC. 607, 607 (2012)CrossRefGoogle ScholarPubMed (citing examples of a surgeon causing a colon perforation and a dermatologist unable to complete biopsies while practicing under the influence).

24 See Brian Mann, Some Health Workers Suffering from Addiction Steal Drugs Meant for Patients, Nat’l Pub. Radio (Oct. 5, 2020, 5:00 AM), https://www.npr.org/2020/10/05/918279481/some-health-workers-suffering-from-addiction-steal-drugs-meant-for-patients [https://perma.cc/6NYF-HCTR] (highlighting the harsh consequences health care workers who divert drugs face if they come forward or are caught).

25 Berge et al., supra note 1, at 676-77.

26 Id.

27 See Abramson et al., supra note 3, at 11-12; Press Release, U.S. Dep’t of Justice, U.S. Attorney’s Office, Dist. Of N.H., supra note 8.

28 See Berge et al., supra note 1, at 676-77; Lien, supra note 23, at 607.

29 Abramson et al., supra note 3, at 11-12.

30 Id.

31 Id. at 13-14.

32 Id. at 14 (referring to how opponents of random drug tests often cite the immense cost of randomly testing workers as the primary reason for not supporting legislation).

33 Id. at 13-14.

34 Id. at 14.

35 Id. (citing Garry Rayno, Bill to Require Hospital Workers to Get Drug Tests Criticized, UNION LEADER, Feb. 26, 2013) (stating that drug testing the “15,000 New Hampshire HCWs could cost close to $2.6 million annually”).

36 Id.

37 See, e.g., id. at 11-12 (detailing the numerous occasions where hospital staff noticed Kwiatkowski’s drug diversion activity); Berge et al., supra note 1, at 678 (emphasizing educational trainings and resources for employees who suspect diversion in its suggested detection and prevention program); O’Connor & Spickard, supra note 16, at 1045 (listing physician behaviors indicative of drug diversion in Table 1).

38 Abramson et al., supra note 1, at 11-12.

39 Id. at 11.

40 Id.

41 Id. (citing Def's Sent. Mem., Ex. I at 1, United States v. David M. Kwiatkowski, No. 1:12-cr-1 49-JL (D.N.H. July 18, 2013)).

42 Id. at 11-12 (citing Md. Dep’t of Health and Mental Hygiene, Public Health Vulnerability Review: Drug Diversion, Infection Risk, and David Kwiatkowski's Employment as a Healthcare Worker in Maryland 2 (2013)).

43 Id. at 12; see also N.H. Dep’t of Health and Human Servs., Hepatitis C Outbreak Investigation 31 (2013).

44 Abramson et al., supra note 3, at 12.

45 Id.

46 Baldisseri, supra note 2, at S111.

47 See Abramson et al., supra note 3, at 11-12 (detailing the many ignored instances of clear and concerning behavior suggesting drug diversion in the Kwiatkowski case study).

48 Id.

49 See id.

50 Baldisseri, supra note 2, at S110; see also Lien, supra note 23, at 607.

51 Lien, supra note 23, at 607.

52 Baldisseri, supra note 2, at S111.

53 Id.

54 Id.

55 Lien, supra note 23, at 607 (citing DesRoches, Catherine M. et al., Physicians’ Perceptions, Preparedness for Reporting, and Experiences Related to Impaired and Incompetent Colleagues, 304 JAMA 187, 191 (2010)CrossRefGoogle ScholarPubMed).

56 See Abramson et al., supra note 3, at 11-12.

57 Regulators’ focus on changing culture within an organization to promote good values and reporting of wrongdoing is not a radical idea. Regulators view a focus on culture and values as a vital part of a good corporate compliance program, as seen in the Federal Sentencing Guidelines for Organizations. See U.S. Sentencing Comm’n, Federal Sentencing Guidelines Manual § 8B2.1(a) (2018).

58 See Lisa N. Sacco, Cong. Research Serv., R43749, Drug Enforcement in the United States: History, Policy, and Trends 16 (2014); see also infra Section III.B (explaining how those who divert drugs may face criminal sanctions under the Controlled Substances Act and other state laws).

59 See infra Sections III.A.1, III.A.2.

60 See infra Section IV.B.

61 See, e.g., Am. Soc’y of Health Sys. Pharmacists, Ashp Guidelines for Preventing Diversion of Controlled Substances 81, 86 (2016).Google Scholar

62 See Abramson, supra note 3, at 11-12 (describing multiple instances where Kwiatkowski diverted drugs through syringe swapping, in storage rooms, and more).

63 See Abramson et al., supra note 3, at 11-12 (describing how each time Kwiatkowski’s diversion was discovered, it was by a colleague who then had to report up); see also Baldiserri, supra note 2, at S110 (“[M]any physicians are unwilling to report an impaired colleague.”); Lien, supra note 21, at 607 (“[P]hysicians do not always report colleagues who are impaired or incompetent.”).

64 Abramson et al., supra note 3, at 11-12.

65 Id.

66 Id.

67 Id. at 12.

68 Id. at 11-12.

69 Id.

70 Id. at 12.

71 About us, Am. Registry Radiologic Technologists, https://www.arrt.org/about/about-us [https://perma.cc/CH7R-8MSQ] (last visited Nov. 17, 2020).

72 David B. Caruso & Holly Ramer, Med Tech’s Arrest Shows Flaws in System, New Haven Reg. (Aug. 14, 2012, 12:00 AM), https://www.nhregister.com/news/article/Med-tech-s-arrest-shows-flaws-in-system-11524375.php [https://perma.cc/K36J-C4YH].

73 Abramson et al., supra note 3, at 11; see also What Is ARRT Certification & Registration?, Am. Registry Radiologic Technologists, https://www.arrt.org/about-the-profession/arrt-certification-and-registration [https://perma.cc/M3P8-D2QZ] (last visited Nov. 17, 2020).

74 Abramson et al., supra note 3, at 12.

75 Id.

76 See infra Section IV.A.

77 See infra Section IV.A; see also Federal Controlled Substances Act, 21 U.S.C. §§ 841, 843 (2018) (criminalizing the improper diversion of drugs); Gipson v. Kasey, 150 P.3d 228, 234 (Ariz. 2007) (recognizing a duty to not divert drugs); Cavico, Frank J. & Cavico, Nancy M., The Nursing Profession in the 1990’s: Negligence and Malpractice Liability, 43 CLEV. ST. L. REV. 557, 569-73 (1995)Google Scholar (examining the relationship between negligence and malpractice suits in the health care professions).

78 See infra Section IV.A; see also Walters v. UPMC Presbyterian Shadyside, 187 A.3d 214, 215 (Pa. 2018) (finding that hospital had a legal duty to report a radiology technician’s diversion of fentanyl to the Drug Enforcement Administration).

79 See infra Section IV.A.

80 See SACCO, supra note 58, at 16.

81 See infra Section IV.A; see also McCrosky v. Carson Tahoe Reg’l Med. Ctr., 408 P.3d 149, 151 (Nev. 2017) (recognizing vicarious liability for hospitals when an ostensible agency relationship exists); Diggs v. Novant Health, Inc., 628 S.E.2d 851, 853-854 (N.C. Ct. App. 2006) (reversing grant of summary judgment finding that hospital could not be vicariously liable because a material issue of fact regarding agency existed).

82 See Hinterlong v. Baldwin, 720 N.E.2d 315, 319 (Ill. App. Ct. 1999) (“[M]edical malpractice … falls within the traditional ambit of state law.”); Cavico & Cavico, supra note 77, at 572 (recognizing the lack of uniformity across jurisdictions regarding some tort and medical malpractice issues).

83 Doherty v. Hellman, 547 N.E.2d 931, 933 (Mass. 1989); see also Barry A. Lindahl, Modern Tort Law: Liability and Litigation § 24:1 (2d ed.), Westlaw (database last updated June 2020); Marc G. Perlin, Massachusetts Proof of Cases Civil § 22:2, Westlaw (database last updated Nov. 2019).

84 Doherty, 547 N.E.2d at 933.

85 See Civitarese v. Gorney, 266 N.E.2d 668, 671 (Mass. 1971).

86 Id.

87 Rigelhaupt, James L., Annotation, What Constitutes Physician–Patient Relationship for Malpractice Purposes, 17 A.L.R. 4th 132 § 2 (1982).Google Scholar

88 Id.

89 See Peterson v. Phelps, 143 N.W. 793, 793-94 (Minn. 1913) (finding that doctor, by at looking at and suggesting care for painful finger, rendered services and thus formed a physician-patient relationship).

90 See Adams v. Via Christi Reg’l Med. Ctr., 19 P.3d 132, 140 (Kan. 2012) (finding that only “physician’s express or implied consent to advise or treat the patient is required for the relationship to come into being”).

91 Id. at 140.

92 Id. at 140-41 (finding a telephone call, where the physician provided advice to the mother of patient he had not seen in years, constituted the creation of a physician-patient relationship because he consensually undertook to provide advice affecting the care of the patient).

93 See Brune v. Belinkoff, 235 N.E.2d 793, 797-98 (Mass. 1968) (collecting cases across jurisdictions where expert testimony as to proper standard of care was provided at malpractice trials); see also Harlow v. Chin, 545 N.E.2d 602, 605 (Mass. 1989) (“This causal link generally must be established by expert testimony that the injury was more probably than not a result of the physician’s negligence.”).

94 Brune, 235 N.E.2d at 797-98.

95 Id.

96 Harlow, 545 N.E.2d at 605 (citing Murphy v. Conway, 277 N.E.2d 681, 684 (Mass. 1972)) (“A plaintiff in a medical malpractice action has the burden of proving that the physician’s negligence was the proximate cause of the plaintiff’s injuries.”).

97 Civitarese v. Gorney, 266 N.E.2d 668, 671 (Mass. 1971) (quoting Haggerty v. McCarthy, 181 N.E.2d 562, 565 (Mass. 1962)) (“It is only in exceptional cases that a jury instructed by common knowledge and experience may without the aid of expert medical opinion determine whether the conduct of a physician toward a patient is violative of the special duty which the law imposes as a consequence of this particular relationship.”).

98 Id. at 671 (finding that without the aid of a medical expert, the failure to read preoperative tests was not sufficiently obvious to establish a causal link between the deviation and the harm).

99 See Cavico & Cavico, supra note 77, at 569-573 (distinguishing professional negligence from malpractice in the medical field).

100 Berge et al., supra note 1, at 676 (referencing examples of janitors and other parties who diverted drugs in Mayo Clinics between 2010 and 2011).

101 See Candler Gen. Hosp., Inc. v. McNorrill, 354 S.E.2d 872, 875-76 (Ga. Ct. App. 1987) (citations omitted) (“[S]imply because an alleged injury occurs in a hospital setting, a suit to recover for that injury is not necessarily a ‘medical malpractice’ action …. A professional malpractice action is merely a professional negligence action and calls into question the conduct of a professional in his area of expertise.”).

102 Cavico & Cavico, supra note 77, at 569-70.

103 Id.

104 Id.

105 Id.

106 Id. at 572. Compare Morris v. Children’s Hosp. Med. Ctr., 597 N.E.2d 1110, 1112-13 (Ohio Ct. App. 1991) (holding that because nurses were not included in the statute for malpractice, an action to hold the hospital liable for their negligent actions was one of ordinary negligence rather than malpractice), with Delicata v. Bourlesses, 404 N.E.2d 667, 670 (Mass. App. Ct. 1980) (applying malpractice standard to nurse based on failure to monitor suicidal patient in accordance with the standard nursing practice).

107 Morris, William O., The Negligent Nurse–the Physician and the Hospital, 33 Baylor L. Rev. 109, 109-10 (1981).Google Scholar

108 Cavico & Cavico, supra note 77, at 570; see also Morris, supra note 107, at 111.

109 Cavico & Cavico, supra note 77, at 572.

110 See Solomon v. City of New York, 489 N.E.2d 1294, 1294-95 (N.Y. 1985); see also Keith N. Hylton, Tort Law: A Modern Perspective 100 (2016).

111 Hylton, supra note 110, at 100.

112 Brune v. Belinkoff, 235 N.E.2d 793, 797-98 (Mass. 1968).

113 Cavico & Cavico, supra note 77, at 570.

114 See HYLTON, supra note 110, at 100; see also supra Section III.A.1.

115 Kinetics, Inc. v. El Paso Prods. Co., 653 P.2d 522, 527 (N.M. Ct. App. 1982) (citing Vicarious Liability, Black’s Law Dictionary (5^th ed. 1979)).

116 Phillips v. Kaiser Aluminum & Chem. Corp., 875 P.2d 1228, 1234 (Wash. Ct. App. 1994).

117 Am. Home Assurance Co. v. Nat’l R.R. Passenger Corp., 908 So. 2d 459, 468 (Fla. 2005).

118 Id. at 470.

119 Id. at 470 (quoting Entman, June F., The Nonparty Tortfeasor, 23 Mem. ST. U. L. Rev. 105, 106 (1992)Google Scholar).

120 See McCrosky v. Carson Tahoe Reg’l Med. Ctr., 408 P.3d 149, 153 (Nev. 2017).

121 Diggs v. Novant Health, Inc., 628 S.E.2d 851, 857 (N.C. Ct. App. 2006).

122 McCrosky, 408 P.3d at 153.

123 Diggs, 628 S.E.2d at 857 (quoting Wyatt v. Walt Disney World Co., 565 S.E.2d 705, 710 (2002)).

124 See id.

125 Id. (quoting Hylton v. Koontz, 532 S.E.2d 252, 257 (N.C. Ct. App. 2000)).

126 Id. (quoting Wyatt, 565 S.E.2d at 710).

127 Id. at 858-59.

128 Id. at 858.

129 See Restatement (Second) of Torts § 429 (Am. Law Inst. 1965) (common test for an apparent agency theory of vicarious liability).

130 Diggs, 628 S.E.2d at 861; see also Simmons v. Tuomey Reg’l Med. Ctr., 533 S.E.2d 312, 322-23 (S.C. 2000).

131 Diggs, 628 S.E.2d at 861; see also Tuomey, 533 S.E.2d at 322-23.

132 Diggs, 628 S.E.2d at 861-62; see also Tuomey, 533 S.E.2d at 322-23.

133 Diggs, 628 S.E.2d at 861-62; see also Tuomey, 533 S.E.2d at 322-23.

134 Sword v. NKC Hosps., Inc., 714 N.E.2d 142, 151-52 (Ind. 1999).

135 Id. at 151.

136 Id. at 151-52.

137 Id. at 151.

138 McCrosky v. Carson Tahoe Reg’l Med. Ctr., 408 P.3d 149, 154 (Nev. 2017).

139 Brookins v. Mote, 292 P.3d 347, 356-57 (Mont. 2012) (finding a waiver signed by the patient expressing that the physician was not an employee of the hospital was sufficient to dispel any reasonable belief the patient could have had that the physician was an employee of the hospital); see also McCrosky, 408 P.3d at 154 (acknowledging that courts differ on the viability of waivers for negating the “appearance” of agency).

140 See McCrosky, 408 P.3d at 154 (finding a waiver expressing the staff were not employees was insufficient to negate the appearance of agency because it did not mention liability, and a reasonable patient could not be expected to understand or infer that because a professional was an independent contractor the hospital would hold no liability).

141 See id. (noting that the contract specified the position of the physicians within the hospital).

142 Gilbert v. Sycamore Mun. Hosp., 622 N.E.2d 788, 794 (Ill. 1993) (quoting Arthur v. St. Peters Hosp., 405 A.2d 443, 447 (N.J. Super. Ct. Law Div. 1979)).

143 Diggs v. Novant Health, Inc., 628 S.E.2d 851, 861 (N.C. Ct. App. 2006).

144 See McCrosky, 408 P.3d at 153.

145 Gilbert, 622 N.E.2d at 796 (quoting Pamperin v. Trinity Mem’l Hosp., 423 N.W.2d 848, 857 (Wis. 1988)).

146 See Cefaratti v. Aranow, 141 A.3d 752, 771 (Conn. 2016).

147 Id.

148 See SACCO, supra note 58, at 16.

149 Id.

150 Id. at 5, 16.

151 United States v. Moore, 423 U.S. 122, 135 (1975).

152 SACCO, supra note 58, at 16.

153 Id. at 16-17.

154 Id. at 6.

155 Id.

156 Controlled Substance Schedules, Drug Enforcement Admin., Diversion Control Division, https://www.deadiversion.usdoj.gov/schedules/ [https://perma.cc/7BRL-E2FT] (last visited Nov. 17, 2020).

157 Id.

158 Id.

159 Controlled Substances Act, 21 U.S.C. § 822 (2018); 21 C.F.R. § 1301.11 (2009) (“Every person who manufactures, distributes, dispenses, imports, or exports any controlled substance or who proposes to engage in the manufacture, distribution, dispensing, importation or exportation of any controlled substance shall obtain a registration unless exempted by law.”).

160 21 U.S.C. § 841.

161 Id. § 843; see also id. § 828 (making it unlawful for anyone to distribute a Schedule I or II drug to another person, besides to the person in the order or order form). Various other code provisions outside the Controlled Substances Act are applicable to diversion, such as 18 U.S.C. § 1365 (2012), which imposes sanctions for tampering with consumer products with reckless disregard for the risk imposed on others.

162 21 U.S.C. § 841.

163 Id. §§ 841, 843.

164 Id. § 841.

165 United States v. Ansaldi, 372 F.3d 118, 128 (2d Cir. 2004).

166 Id.

167 Id. (quoting 21 U.S.C. § 841).

168 United States v. Moore, 423 U.S. 122, 131-32 (1975).

169 Id. at 132-33.

170 Id.

171 Id.

172 21 C.F.R. §§ 1301.91-.92 (2019).

173 21 C.F.R. § 1301.91.

174 21 C.F.R. § 1301.76.

175 See 21 C.F.R. §§ 1301.76, .91.

176 21 C.F.R. § 1301.36; see also 21 C.F.R. §§ 1301.76, .91.

177 Employee Screening Procedures for Non-Practitioners, 40 Fed. Reg. 17,142, 17,142-44 (Apr. 17, 1975) (to be codified at 21 C.F.R. pts. 1301.90-.93) (emphasis added).

178 See 21 C.F.R. §§ 1301.36, .91; Employee Screening Procedures for Non-Practitioners, 40 Fed. Reg. at 17,142-44.

179 See supra Section III.A.1.

180 See Peterson v. Phelps, 143 N.W. 793, 793-94 (Minn. 1913) (establishing that a health care provider who undertakes to diagnose, treat, or prescribe for a patient, even without an express agreement, has created a physician-patient relationship).

181 See Brune v. Belinkoff, 235 N.E.2d 793, 797-98 (Mass. 1968) (establishing that the proper standard is whether the physician has exercised a degree of skill and care of the customary, or average, physician).

182 See Civitarese v. Gorney, 266 N.E.2d 668, 671 (Mass. 1971) (discussing the causation requirement in medical malpractice cases).

183 See supra Section III.A.1.

184 See Cavico & Cavico, supra note 77, at 569-72; see also supra Section III.A.1.

185 See Cavico & Cavico, supra note 77, at 569-72; see also Candler Gen. Hosp., Inc. v. McNorrill, 354 S.E.2d 872, 875-76 (Ga. Ct. App. 1987) (emphasizing the differences between standards applied in medical malpractice versus negligence cases, especially with regard to non-physician health care workers).

186 See supra Section III.A.2.

187 See Controlled Substances Act, 21 U.S.C. §§ 841, 843 (2018); Gipson v. Kasey, 150 P.3d 228, 230-34 (Ariz. 2007).

188 See 21 U.S.C. §§ 841, 843; Kasey, 150 P.3d at 230-34. This legal duty is in addition to the existence of other various state laws that could establish additional avenues for duties of care owed by the diverter to the victims.

189 See 21 U.S.C.A § 841; 21 U.S.C.A § 843; Kasey, 150 P.3d at 230-234.

190 See Berge et al., supra note 1, at 676 (explaining that drug diversion can result in excruciating pain and undue anxiety for patients in need of the drugs as well as patient infection, oftentimes with Hepatitis C).

191 See Civitarese v. Gorney, 266 N.E.2d 668, 671 (Mass.1971); Hylton, supra note 94, at 100; Cavico & Cavico, supra note 77, at 572.

192 Walters v. UPMC Presbyterian Shadyside, 187 A.3d 214, 230-32, 241-42 (Pa. 2018).

193 Id.

194 See id.

195 See McCrosky v. Carson Tahoe Reg’l Med. Ctr., 408 P.3d 149, 153 (Nev. 2017); Diggs v. Novant Health, Inc., 628 S.E.2d 851, 857 (N.C. Ct. App. 2006).

196 See Diggs, 628 S.E.2d at 857.

197 See Dolan, Andrew K. & Ralston, Richard S., Hospital Admitting Privileges and the Sherman Act, 18 Hous. L. Rev. 707, 711 (1981)Google Scholar.

198 See Diggs, 628 S.E.2d at 858-59.

199 See Sword v. NKC Hosps., Inc., 714 N.E.2d 142, 151 (Ind. 1999); Diggs, 628 S.E.2d at 861; Simmons v. Tuomey Reg’l Med. Ctr., 533 S.E.2d 312, 322-23 (S.C. 2000).

200 Diggs, 628 S.E.2d at 861; see also Cefaratti v. Aranow, 141 A.3d 752, 771 (Conn. 2016); Tuomey, 533 S.E.2d at 322-23.

201 See Brookins v. Mote, 292 P.3d 347, 356-57 (Mont. 2012) (finding summary judgment for defendant hospital appropriate because patient signed a consent form acknowledging the physician was an independent contractor and the hospital did not hold the physician out to be its employee); McCrosky, 408 P.3d at 154 (holding a signed conditions of admission agreement was not sufficiently clear enough to dispel the appearance of agency).

202 See Controlled Substances Act, 21 U.S.C. §§ 841, 843 (2018).

203 See id.; United States v. Ansaldi, 372 F.3d 118, 128 (2d Cir.2004).

204 See 21 U.S.C. §§ 841, 843; Ansaldi, 372 F.3d at 128.

205 See 21 U.S.C. §§ 841, 843; Ansaldi, 372 F.3d at 128.

206 See 21 C.F.R. §§ 1301.36, .76, .91, .92 (2019).

207 See Walters v. UPMC Presbyterian Shadyside, 187 A.3d 214, 231-32 (Pa. 2018) (noting that while registrants should notify local law enforcement and state regulatory agencies when drug diversion occurs, they are not required to do so by DEA regulations); Employee Screening Procedures for Non-Practitioners, 40 Fed. Reg. 17,142, 17,142-44 (Apr. 17, 1975) (to be codified at 21 C.F.R. pts. 1301.90-.93).

208 See Walters, 187 A.3d at 230-32, 241-42; 21 C.F.R. §§ 1301.76, .91.

209 See supra Section IV.A.

210 See 21 C.F.R. §§ 1301.76, .91.

211 See Logue, Kyle D., Solving the Judgment-Proof Problem, 72 Tex. L. Rev. 1375, 1375-76 (1994).Google Scholar

212 See id. (“[T]he existence of judgment-proof tortfeasors seriously undermines the deterrence and insurance goals of tort law.”).

213 See Gilles, Stephen G., The Judgment-Proof Society, 63 Wash. & Lee L. Rev. 603, 606 (2006)Google Scholar.

214 See id.; Logue, supra note 211, at 1375-76.

215 See Logue, supra note 211, at 1375-76.

216 Grant, Steven et al., Drug Abusers Show Impaired Performance in a Laboratory Test of Decision Making, 38 Neuropsychologia 1180, 1180-81, 1184-86 (2000).CrossRefGoogle Scholar

217 See supra Section IV.A.

218 See Gilles, supra note 213, at 605-06; Logue, supra note 211, at 1375-76.

219 See Gilles, supra note 213, at 605-06; Logue, supra note 211, at 1375-76.

220 See McCrosky v. Carson Tahoe Reg’l Med. Ctr., 408 P.3d 149, 153-54 (Nev. 2017); Diggs v. Novant Health, Inc., 628 S.E.2d 851, 857-58, (N.C. Ct. App. 2006).

221 See Diggs, 628 S.E.2d at 857; Dolan, supra note 197, at 711.

222 See Diggs, 628 S.E.2d at 857 (quoting Wyatt v. Walt Disney World Co., 565 S.E.2d 705, 710 (N.C. Ct. App. 2002)).

223 See id.; Dolan, supra note 197, at 711.

224 See Brookins v. Mote, 292 P.3d 347, 356-57 (Mont. 2012); McCrosky, 408 P.3d at 154; Diggs, 628 S.E.2d at 857.

225 See Katie Johnson, Nat’l Research Corp., The Link Between Patient Experience and Hospital Reputation 2 (2014) (finding that a hospital’s reputation could be its most important attribute, with sixty percent of consumers claiming that a hospital’s reputation is “very important” when selecting it for future needs); Baldisseri, supra note 2, at S111.

226 See Abramson et al., supra note 3, at 11-12.

227 See id.

228 Baldisseri, supra note 2, at S111.

229 See supra Section IV.A.

230 See Logue, supra note 211, at 1375-76; see also supra Section IV.B.

231 See 21 C.F.R. §§ 1301.36, .91 (2019).

232 See Baldisseri, supra note 2, at S111.

233 See 21 C.F.R. §§ 1301.36, .76, .91.

234 Baldisseri, supra note 2, at S111; Lien, supra note 23, at 607.

235 See 21 C.F.R. §§ 1301.76, .91; Baldisseri, supra note 2, at S111; Lien, supra note 23, at 607.

236 See Baldisseri, supra note 2, at S111; Lien, supra note 23, at 607; see also supra Section

237 See Baldisseri, supra note 2, at S111; Lien, supra note 23, at 607; see also supra Section IV.B. IV.B.

238 See supra Section IV.B.

239 Abramson et al., supra note 3, at 13-14.

240 Id. at 14 (citing Rayno, supra note 35).

241 See id. (citing cost and the “heavy burden” of testing all employees as reasons why health care facilities opposed mandatory randomized drug testing for their employees).

242 See id. (noting that suspicion-based drug testing policies failed to prevent the Hepatitis C outbreak because health care workers ignored evidence of Kwiatkowski’s ongoing drug diversion activities).

243 See Child Welfare Info. Gateway, U.S. Dep’t of Health & Human Servs., Penalties for Failure to Report and False Reporting of Child Abuse and Neglect 1-2 (2019), https://www.childwelfare.gov/pubPDFs/report.pdf [https://perma.cc/24FK-9TSA] (describing penalties for mandatory reporters, defined as “professionals and other persons who are required by State law to report suspected child abuse or neglect”).

244 Id.

245 FLA. STAT. § 893.07 (5)(b) (2019).

246 See Harel, Alon & Klement, Alon, The Economics of Stigma: Why More Detection of Crime May Result in Less Stigmatization, 36 J. Legal Stud. 355, 355-57 (2007)CrossRefGoogle Scholar (noting that stigma deters potential law-breakers who fear that other “law-abiding individuals … would limit their social or professional interaction with them as a result of their being subjected to a criminal penalty”).

247 Niccolò Machiavelli, The Prince 66 (Luigi Ricci trans., Grant Richards 1903) (1532) (emphasis added).

248 See id.; see also supra Section IV.B.

249 KY. REV. STAT. ANN. § 620.030 (West 2019).

250 See supra Section IV.B.

251 Child Welfare Info. Gateway, U.S Dep’t of Health & Human Servs., Mandatory Reporters of Child Abuse and Neglect 3 (2019), https://www.childwelfare.gov/pubPDFs/manda.pdf [https://perma.cc/2Q5W-UZTG].

252 See Baldisseri, supra note 2, at S111 (noting that employment reprisals are a concern disincentivizing the reporting of diversion).

253 See Child Welfare Info. Gateway, supra note 243, at 2 (noting how mandatory reporters, including “health-care practitioner[s]” who fail to report child abuse or neglect may be subject to criminal penalties in addition to civil liability, depending on the state).

254 See Abramson et al., supra note 3, at 11-12 (noting that Kwiatkowski’s hospital colleagues noticed signs that the employee had diverted or tampered with syringes as he infected multiple patients with Hepatitis C by injecting himself with fentanyl); see also supra Section II.

255 See Abramson et al., supra note 3, at 14 (advocating for legislation to require all health care workers to undergo mandatory and random drug screening); see also supra Sections III.B, IV.B (discussing the weaknesses of current DEA regulations, civil claims, and criminal punishment in deterring diversion).

256 See Baldiserri, supra note 2, at S108 (reporting that studies find rates of drug misuse by physicians as high as fifteen percent and substance abuse disorders in physicians as high as eight percent, with “chemical dependence [being] the most frequent disabling illness among physicians”).

257 See Berge et al., supra note 1, at 674 (“[R]eady access is a critical component of drug diversion from the health care facility workplace.”); O’Connor & Spickard, supra note 16, at 1042 (finding that practicing physicians have an increased likelihood for unsupervised opioid use and anesthetists are under particular scrutiny because their work involves opioid and benzodiazepines).

258 See, e.g., Abramson et al., supra note 3, at 11-12 (Hepatitis C outbreak); Clark, supra note 3 (painful surgical awareness); Lien, supra note 23, at 607 (colon perforation).

259 See Baldisseri, supra note 2, at S111.

260 See Abramson et al., supra note 3, at 10 (attributing thirty-two cases of Hepatitis C to Kwiatkowski, who diverted drugs for over eight years without removal from patient care despite being caught numerous times).

261 See Berge et al., supra note 1, at 677.

262 See Gilles, supra note 213, at 605-06; Logue, supra note 211, at 1375-76.

263 See Grant et al., supra note 216, at 1180-81, 1184-86.

264 See supra Section IV.B.

265 See 21 C.F.R. § 1301.91 (2019) (“A failure to report information of drug diversion will be considered in determining the feasibility of continuing to allow an employee to work in a drug security area.”).

266 See Baldisseri, supra note 2, at S111; Lien, supra note 23, at 607.

267 See Abramson et al., supra note 3, at 13-14.

268 Child Welfare Info. Gateway, supra note 243, at 2.