Underreported Diversion: A Law Enforcement Perspective


May 2019 : Diversion Management - Vol. 16 No. 5 - Page #1

Diversion in the health care setting can have far-reaching effects beyond the hospital into the community at large, making reporting crucial. As a long-time educator on diversion for law enforcement and health care professionals, I have seen some encouraging evidence of increases in reporting of late; nonetheless, acts of diversion remain vastly underreported overall. Facilities that do not report may be acting under the misguided belief that they are protecting their hospital. In reality, by not addressing the offender’s addiction, they are simply allowing for diversion to recur elsewhere, expanding the problem rather than keeping patients safe and providing an opportunity for rehabilitation. Furthermore, facilities may put themselves at risk for significant settlements from civil suits in order to resolve situations that could have been ameliorated with an early response.

Diversion Investigations: Early Years

In 1990, with 22 years of law enforcement experience spanning uniform patrol, homicide squad, and Internal Affairs, I was given the opportunity to form and supervise a new Cincinnati police unit, the Pharmaceutical Diversion Squad (PDS). The Ohio Board of Pharmacy (OBP) suspected prescription drug abuse statewide and obtained grants in order to investigate and address diversion. After the Columbus police department successfully received funding, our department followed suit, being the second in the state to establish a diversion squad.

At the time, the challenge within this unique assignment was identifying a team of skilled investigators, as few in the Cincinnati police department had experience with drug diversion law enforcement, outside of occasional participation in a county-wide taskforce. Fortunately, the OBP provided training and we coordinated with the Columbus police department to learn from their processes.

Our first initiative involved visiting every retail pharmacy in Cincinnati to drop off a business card by way of introducing ourselves. In response to this outreach, tips began to pour in, and we quickly became inundated with cases and investigations into various phases of pharmaceutical diversion, ranging from forged and altered prescriptions to false diagnoses. We also discovered that pharmacists were by far our best resource in these investigations, a trend that would repeat when we expanded our efforts to diversion cases within health care facilities.

Focus on Health Systems

The magnitude of diversion within health care facilities was not acknowledged at that time. Yet, recognizing that patients in the care of an impaired health care professional are at significant risk, we began to shift our focus to prioritize hospital diversion investigations.

When this endeavor began, hospital software systems were in their early iterations, and many of the monitoring tools and automation that we take for granted today did not exist. The concept of law enforcement entering local hospitals and long-term care facilities was also new. Health care workers were often hesitant to work directly with the police, and looked to their legal departments for direction. Having the OBP investigators on our team helped alleviate these concerns, and we relied on a state law that permitted us entrance to any location where controlled substances were handled. When necessary, we could also leverage criminal laws such as obstructing official business, and a statute that required any Ohio resident to report a felony in process, or if one was known to have occurred. Originally designed for emergency room incidents involving gunshot wounds, knife wounds, or sexual assault, the law required that authorities be notified of any felony, and as virtually all the drug diversion offenses in the health facility setting were classified as felonies, they required reporting.

Notably, the majority of health system investigations resulted from notifications from the facility itself, usually by staff from pharmacy and/or security. In some cases, evidence was overt, such as finding a staff member lying unconscious on the floor, but more frequently, pharmacy identified signs that suggested potential diversion. Regardless of the level of diversion suspected, our team would be called in to begin an investigation.

Gaining Cooperation

Over time, it became the norm for local health care facilities to report incidents of diversion to our department, with the exception of one institution. That facility’s security director adamantly refused to cooperate and acted with the support of the hospital board. To help us, a pharmacist investigator from OPB approached the security director and the responsible pharmacist. Shortly thereafter, an incident occurred at the facility. A traveling nurse hired by the facility was caught diverting medication, and the security director was notified but elected not to report it to law enforcement.

Our office likely would not have learned about the incident, but for a staff member tipping us off that no investigation had been conducted nor was the OPB notified; the nurse was simply sent on her way. The security director’s failure to report jeopardized the license of the responsible pharmacist as well as the facility’s controlled substance license. Ultimately, both the security director and responsible pharmacist agreed to report all future incidents in order to avoid any charges or actions against their licensure. We elected not to pursue action against the nurse, as she had left our jurisdiction; however, we did inform her employer.

This incident paved the way for us to continue these novel types of investigations. Today, we are all well aware that addiction, and diversion to support addiction, are ongoing issues within the health care community. Unfortunately, similar situations also continue whereby some institutions demonstrate a lack of commitment to reporting diversion events.

Diversion Today

Recent reports indicate that many drug diversion cases detected in health care facilities continue to go unreported.1 To use our city’s statistics to illustrate the scope of this problem: During my years in charge of PDS, we averaged about 50 health system arrests per year. Extrapolating from our population data at that time, on a national basis, we would expect to see approximately 102 reported cases per day, or over 37,000 cases per year. Given that we did not catch every diverting health professional, these figures would be low at best.

The danger from not reporting diversion events in health care facilities is illustrated by the 2013 case involving a traveling medical technician, David Kwiatkowski, who diverted from a number of operating rooms across the country. He was caught repeatedly, but his addiction was never treated and his diversion was never reported. He obtained fentanyl when anesthesiologists and nurse anesthetists left controlled substances unattended in the OR, then injected himself and replaced the contents of the syringe with saline. Kwiatkowski contracted Hepatitis C, thus, tainted saline injections were given unknowingly to patients, in place of pain treatment. This practice continued without being reported to law enforcement, the DEA, or responsible regulatory agencies, until eventually, in Exeter Hospital in Exeter, New Hampshire, 30 patients became infected with Hepatitis C. Kwiatkowski was later sentenced to 39 years in federal prison.2

Today, health care workers have a number of resources for reporting and addressing diversion. By contacting local law enforcement, the DEA, or other agencies, pharmacy representatives can help lower risks to patients and the community at large, as well as help get treatment for diverters suffering from addiction. Given that we now recognize diversion as an ongoing issue in health care, it is incumbent upon all health care staff to minimize the resulting risk to patients. Employees who divert should not simply be let go and thus allowed to continue their diversion at other facilities. It is irresponsible to protect the patients in our facilities at the expense of those patients in other facilities; we are responsible for safeguarding all patients, not just those under our direct care.


John Burke is president of the International Health Facility Diversion Association (IHFDA), a non-profit group that addresses drug diversion in health care facilities, which he co-founded in 2015 with Kimberly New JD, BSN, RN. He worked in law enforcement previously, having established the Pharmaceutical Diversion Squad (PDS) in Cincinnati, Ohio, in 1990. The PDS unit was featured on Dateline in 1996, showcasing the team’s work in investigating diversion.


References

  1. Protenus, Inc. Drug Diversion Digest: Year in Review. https://email.protenus.com/hubfs/Drug%20Diversion%20Digest/2017%20Drug%20Diversion%20Digest%20.pdf. Accessed April 19, 2019.
  2. Navarro L. Ex-hospital worker gets 39 years for causing hepatitis C outbreak. CNN. www.cnn.com/2013/12/02/health/new-hampshire-hospital-worker-hepatitis-c/index.html. Accessed April 3, 2019.

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