DISTRICT COURT, CITY AND COUNTY OF DENVER, STATE OF COLORADO

Court Address: 2nd Judicial District

City & County Building 1437 Bannock Street Denver, Colorado 80203

Plaintiff: ANTOINETTE FLEISHER

Defendants: HOSPITAL CORPORATION OF AMERICA ("HCA")-HEAL THONE, LLC, d/b/a ROSE MEDICAL CENTER, f/d/b/a ROSE SURGICAL CENTER, and SHAWN W. ROTH, M.D.

A COURT USE ONLY A

Jim Leventhal Hollynd Hoskins

Leventhal, Brown & Puga, P.c. 950 S. Cherry Street, Suite 600 Denver, Colorado 80246

Phone Number:

FAX Number:

E-mail:

E-mail:

Hollynd Hoskins Jim Leventhal

(303) 759-9945

(303) 759-9692 hollynd@leventhal-law.com jim@,leventhal-law.com Attorney Reg #: 21890 Attorney Reg #: 5815

Case Number:

Div:

COMPLAINT FOR DAMAGES, CERTIFICATE OF REVIEW AND JURY DEMAND

Plaintiff, Antoinette Fleisher, through her attorneys, Leventhal, Brown & Puga, P.C., respectfully submits the following Complaint for Damages and Jury Demand. As grounds thereof, Plaintiff alleges:

CERTIFICATE OF REVIEW

Pursuant to C.R.S. § 13-20-602(3)(a), Counsel certifies as follows:

a. Counsel has consulted with physician(s) with expertise in the area of the alleged

negligent conduct as set forth in Plaintiff s Complaint;

b. The physician(s) who has been consulted has reviewed all known facts relevant to

the allegations of negligent conduct as complained of in Plaintiff s Complaint;

c. Based upon review of such facts, the physician(s) has concluded that the filing of

the claims against the defendant does not lack substantial justification within the meaning of C.R.S. § 13-17-102(4); and

d. The physician(s) has reviewed all known facts relevant to the allegations of

negligent conduct as contained in Plaintiffs Complaint meet the requirements set forth in C.R.S. § 13 -64-40 1.

I. PARTIES, VENUE AND JURISDICTION

1. Plaintiff Antoinette Fleisher is, and was at all relevant times, a resident of the

State of Colorado.

2. Kristen Parker was, at all relevant times, a resident of the State of Colorado and

an employee of Defendant Hospital Corporation of America-HealthONE, LLC, and d/b/a Rose Medical Center, f/d/b/a / Rose Surgical Center.

3. Defendant Shawn W. Roth was, at all relevant times, a physician licensed to

practice medicine in the State of Colorado specializing in anesthesiology.

4. Upon information and belief, Defendant Hospital Corporation of America-

HealthONE, LLC, d/b/a Rose Medical Center, f/d/b/a/ Rose Surgical Center ("Hospital Corporation/Rose"), was a Colorado limited liability company doing business in the State of Colorado.

5. Upon information and belief, Defendant Shawn W. Roth, M.D., was, at all

relevant times, a member of Colorado Anesthesia Consultants P.c. ("CAC").

6. Upon information and belief, at all relevant times, CAC had a contract with

Defendant Hospital Corporation/Rose to provide anesthesia services to patients undergoing surgical procedures and other healthcare treatment at Defendant Hospital Corporation/Rose.

7. This Court has personal and subject matter jurisdiction over this action pursuant

to C.R.S. § 13-1-124(l)(a), (b) and (c).

8. Venue is appropriate before this Court pursuant to Rule 98( c) of the Colorado

Rules of Civil Procedure because the tortious conduct occurred in the City and Count of Denver, State of Colorado.

II. GENERAL ALLEGATIONS

9. Plaintiff incorporates paragraph 1 through 8 herein by reference.

10. On January 22, 2009, Plaintiff Antoinette Fleisher was admitted to Defendant

Hospital Corporation/Rose for a surgical procedure.

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11. On January 22, 2009, Kristen Parker was assigned to be the surgical scrub

technician during Ms. Fleisher's procedure at Defendant Hospital Corporation/Rose.

12. On January 22, 2009, Defendant Dr. Roth was assigned as the anesthesiologist on

Ms. Fleisher's surgical procedure at Defendant Hospital Corporation/Rose.

12a. Upon information and belief, on January 22, 2009, Defendant Dr. Roth obtained Fentanyl from Defendant Hospital Corporation/Rose's "Acudose-Rx Station," an automated narcotic drug dispensary, at 07:32 A.M. for anesthetic administration to Ms. Fleisher prior to and/or during Ms. Fleisher's procedure.

12b. On January 22, 2009, between 7:32 am and 8:07 am, Defendant Dr. Roth and/or members of his anesthesiology team filled a syringe with the dispensed Fentanyl for use during Ms. Fleisher's surgery and left it unattended and unsecured.

12c. On January 22, 2009, between 7:32 am and 8:07 am, Kristen Parker was able to gain access and control of the Fentanyl syringe dispensed for Ms. Fleisher and replace it with a used syringe filled with saline and contaminated with Hepatitis C.

13. On January 22, 2009, Defendant Dr. Roth, members of the anesthesiology team

and all employees and agents of Defendant Hospital Corporation/Rose failed to detect that the Fentanyl syringe dispensed for Ms. Fleisher had been diverted and replaced with a used syringe filled with saline and contaminated with Hepatitis C.

14. On January 22, 2009, at approximately 8:07 am, Defendant Dr. Roth began

administering the used syringe filled with saline and contaminated with Hepatitis C to Ms. Fleisher.

15. Prior to her procedure at Defendant Hospital Corporation/Rose on January 22,

2009, Ms. Fleisher was not infected with the Hepatitis C.

16. Upon information and belief, Kristen Parker has a significant history of drug

abuse and addiction, including a history of intravenous heroin abuse and addiction.

17. Upon information and belief, as a result of needle-sharing with other intravenous

drug users, Kristen Parker contracted and was actively infected with Hepatitis C prior to her employment at Defendant Hospital Corporation/Rose.

18. At all relevant times, Kristen Parker was infected with Hepatitis C, including but

not limited to, genotype 1 B.

19. At all relevant times, Defendant Hospital Corporation/Rose knew that Kristen

Parker was infected with Hepatitis C.

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20. On May 15, 2009, Ms. Fleisher tested positive for Hepatitis C, genotype 1 B.

Upon information and belief, Ms. Fleisher contracted Hepatitis C during her January 22, 2009 surgery at Defendant Hospital Corporation/Rose.

21. On or about September 22, 2009, Ms. Fleisher's Hepatitis C viral sequencing

analysis results from the Colorado Department of Public Health and Environment ("CDPHE") and the Centers for Disease Control and Prevention ("CDC") indicated that Ms. Fleisher's Hepatitis C infection shared a 97.5% - 100% degree of genetic relatedness to that of Kristen Parker.

22. Ms. Fleisher went on to develop chronic Hepatitis C based on her contraction of

Hepatitis C during her surgery at Defendant Hospital Corporation/Rose on January 22, 2009.

23. Ms. Fleisher had to undergo a liver biopsy to determine the amount of liver

damage she has suffered as a result of Hepatitis C.

24. Liver biopsy tests have indicated that Ms. Fleisher has already begun to develop

fibrosis and liver scarring as a result of Ms. Fleisher's contraction of Hepatitis C during her procedure at Defendant Hospital Corporation/Rose on January 22, 2009.

25. All of Ms. Fleisher's treating healthcare providers concur that treatment of Ms.

Fleisher's Hepatitis C virus with interferon therapy is medically inadvisable due to contraindications.

26. Due to Ms. Fleisher's contraction of Hepatitis C during her surgery at Defendant

Hospital Corporation/Rose on January 22, 2009, Ms. Fleisher will suffer from chronic Hepatitis C for the remainder of her life.

27. Ms. Fleisher will now have a substantially heightened risk of developing severe

and life threatening liver damage, including cirrhosis, liver cancer and/or liver failure.

28. Due to Ms. Fleisher's contraction of chronic Hepatitis C during her surgery at

Defendant Hospital Corporation/Rose on January 22, 2009, Ms. Fleisher now has a substantially heightened probability of needing a liver transplant in order to avoid premature death resulting from her Hepatitis C infection.

29. Ms. Fleisher's contraction of Hepatitis C during her surgery at Defendant Hospital

Corporation/Rose on January 22, 2009, has had - and will forever have - a tremendous impact on Ms. Fleisher's quality of life.

30. At all relevant times, by virtue of its confidential relationship for the facilitation

of medical care to Ms. Fleisher, Defendant Hospital Corporation/Rose was a fiduciary of Ms. Fleisher. Accordingly, Defendant Hospital Corporation/Rose owed to Ms. Fleisher a duty to act in Ms. Fleisher's best interests in any matters connected with Defendant Hospital Corporation/Rose's facilitation of medical care to Ms. Fleisher.

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31. At all relevant times, by virtue of his confidential relationship for the provision of

anesthetic services to Ms. Fleisher, Defendant Dr. Roth was a fiduciary of Ms. Fleisher. Accordingly, Defendant Dr. Roth owed to Ms. Fleisher a duty to act in Ms. Fleisher's best interests in any matters connected with Defendant Dr. Roth's anesthetic services to Ms. Fleisher.

32. Upon information and belief, Defendant Hospital Corporation/Rose had an

internal storage of medications policy which was in effect at all relevant times. This policy required all controlled substances to be "securely locked" and "closely monitored to prevent diversion. "

33. Upon information and belief, Defendant Hospital Corporation/Rose had an

internal policy regulating the dispensing and administration of controlled substances for inpatients and outpatients which was in effect at all times relevant. This policy required that all controlled substances must be dispensed, administered, and recorded for accountability in accordance with state and federal law.

34. Upon information and belief, Defendant Dr. Roth was at all relevant times aware

of and expected to abide by those of Defendant Hospital Corporation/Rose's policies relating to the dispensing, monitoring and administration of controlled substances in the course of Defendant Dr. Roth's duties as an anesthesiologist at Defendant Hospital Corporation/Rose.

35. Pursuant to C.R.S. § 18-18-204 and 21 C.F.R. § 1308.12, Fentanyl is classified as

a Schedule II controlled substance.

36. Upon information and belief, on January 22, 2009, between 07:32 AM and 08:07

AM, Defendant Dr. Roth left syringe(s) filled with Fentanyl, intended for use prior to and/or during Ms. Fleisher's procedure, unattended, unmonitored, and unsecured in an unlocked operating room.

37. Upon information and belief, during the course of Ms. Fleisher's procedure on

January 22, 2009, Defendant Dr. Roth injected Ms. Fleisher with what he thought to be Fentanyl.

38. Upon information and belief, on January 22, 2009, Defendant Dr. Roth injected

Ms. Fleisher with saline, instead of Fentanyl.

39. Upon information and belief, the syringe(s) which Defendant Dr. Roth used to

inject Ms. Fleisher with saline had been contaminated with Hepatitis C by Kristen Parker.

40. Upon information and belief, Defendant Hospital Corporation/Rose billed Ms.

Fleisher $89.54 for one 5 mL unit of Fentanyl.

41. Upon information and belief, on January 22, 2009, Ms. Fleisher contracted

Hepatitis C from when Defendant Dr. Roth injected her with saline, rather than Fentanyl.

42. Kristen Parker's diversion of Fentanyl from Defendant Hospital Corporation/Rose

on January 22, 2009, was not an isolated event.

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43. Upon information and belief, on or about October 20, 2008, Defendant Hospital

Corporation/Rose subjected Kristen Parker to a medical examination as a preliminary condition of Kristen Parker's employment at Defendant Hospital Corporation/Rose.

44. Upon information and belief, on or about October 20, 2008, a representative of

Defendant Hospital Corporation/Rose informed Kristen Parker that Kristen Parker blood tests indicated that Kristen Parker was infected with Hepatitis C.

45. Upon information and belief, Defendant Hospital Corporation/Rose took no

investigative action to determine how Kristen Parker contracted Hepatitis C.

46. Upon information and belief, on October 20, 2008, Defendant Hospital

Corporation/Rose hired Kristen Parker as a surgical scrub technician.

47. On October 20, 2008, Kristen Parker attended an orientation program for new

employees of Defendant Hospital Corporation/Rose.

48. On or about October 22, 2008, Kristen Parker worked her first shift III her

capacity as a surgical scrub technician at Defendant Hospital Corporation/Rose.

49. Upon information and belief, on or about October 22, 2008, Kristen Parker first

became aware that her surgical scrub technician position provided her with access to numerous unlocked operating rooms at Defendant Hospital Corporation/Rose in which Fentanyl and other narcotic controlled substances were left unattended, unsecured, and unmonitored.

50. Upon information and belief, on or about October 22, 2008, Kristen Parker - for

the first time - diverted unattended Fentanyl from an operating room at Defendant Hospital Corporation/Rose, and replaced the Fentanyl syringe(s) with syringe(s) she had filled with saline.

51. Upon information and belief, Kristen Parker's diversion of Fentanyl from

Defendant Hospital Corporation/Rose on October 22, 2008, was not detected by Defendant Hospital Corporation/Rose.

52. Upon information and belief, Kristen Parker's October 22, 2008 diversion of

Fentanyl from Defendant Hospital Corporation/Rose began a six-month period in which Kristen Parker regularly - probably daily - diverted Fentanyl syringes from Defendant Hospital Corporation/Rose, and replaced them with used dirty syringes filled with saline.

53. Upon information and belief, between October 22, 2008 and April 22, 2009,

Kristen Parker often injected herself with Fentanyl during her shifts at Defendant Hospital Corporati on/Rose.

54. Upon information and belief, between October 22, 2008 and April 22, 2009,

Kristen Parker was regularly significantly impaired during her shifts at Defendant Hospital Corporation/Rose due to her being under the influence of intravenous Fentanyl.

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55. Upon information and belief, between October 22, 2008 and April 22,2009,

Defendant Hospital Corporation/Rose was unaware of the rampant and regular diversion of Fentanyl occurring on its premises, and Defendant Hospital Corporation/Rose continued to entrust Kristen Parker to work in her capacity as a surgical scrub technician, where Kristen Parker was tasked with assisting in the medical treatment of particularly vulnerable, anesthetized surgical patients.

56. Upon information and belief, between October 22, 2008 and April 22, 2009,

Kristen Parker often took home - for personal use - Fentanyl syringes she had diverted from Defendant Hospital Corporation/Rose.

57. Upon information and belief, between October 22, 2008 and April 22, 2009,

certain of Kristen Parker's intravenous-drug-using acquaintances were given access to, and permitted to inject themselves with, Fentanyl syringes Kristen Parker had diverted from Defendant Hospital Corporation/Rose.

58. Upon information and belief, between October 22, 2008 and April 22, 2009,

Kristen Parker regularly diverted Fentanyl syringes from Defendant Hospital Corporation/Rose, and replaced them with dirty syringes that she or her drug-using acquaintances had previously used to inject themselves with Fentanyl and/or other illegal drugs.

59. Upon information and belief, between October 22, 2008 and April 22, 2009,

Kristen Parker diverted Fentanyl from Defendant Hospital Corporation/Rose for personal use whenever she had an opportunity.

60. Upon information and belief, between October 22, 2008 and April 22, 2009,

Kristen Parker had regular opportunities to divert Fentanyl from numerous of Defendant Hospital Corporation/Rose's operating rooms during practically every shift she worked.

61. Upon information and belief, between October 22, 2008 and April 22, 2009,

Kristen Parker worked five days per week at Defendant Hospital Corporation/Rose.

62. Upon information and belief, between October 22, 2008 and April 22, 2009,

Kristen Parker regularly diverted Fentanyl from Defendant Hospital Corporation/Rose upwards of five times per day while on shift at Defendant Hospital Corporation/Rose.

63. Upon information and belief, between October 22, 2008 and April 22, 2009,

Kristen Parker would regularly inject herself with Fentanyl numerous times during a single shift at Hospital Corporation/Rose.

64. Upon information and belief, between October 22, 2008, and April 22, 2009, no

representative of Defendant Hospital Corporation/Rose or Defendant Dr. Roth ever recognized that Kristen Parker was under the influence of Fentanyl during her shifts at Defendant Hospital Corporation/Rose.

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65. Upon information and belief, between October 22, 2008 and April 22, 2009,

Defendant Hospital Corporation/Rose and Defendant Dr. Roth failed to become aware that large quantities of its syringes, saline and Fentanyl supply were being diverted by Kristen Parker.

66. Upon information and belief, on or about March 23, 2009, Defendant Hospital

Corporation/Rose suspended Kristen Parker because another of Defendant Hospital Corporation/Rose's employees was stuck with a needle Kristen Parker had in her pocket.

67. Upon information and belief, on or about March 23, 2009, in connection with her

suspension, Kristen Parker was ordered by Defendant Hospital Corporation/Rose to submit to a urinalysis drug screen.

68. Upon information and belief, Fentanyl is widely known to be one of the most

regularly diverted drugs in the healthcare industry nationwide.

69. Upon information and belief, prior to March 23, 2009, Fentanyl was the most

regularly diverted drug at Defendant Hospital Corporation/Rose.

70. Upon information and belief, on or about March 23, 2009, the urinalysis drug

screen conducted by Defendant Hospital Corporation/Rose did not test Kristen Parker's urine for the presence of Fentanyl.

71. Upon information and belief, on or about March 30, 2009, Kristen Parker's

urinalysis drug screen came back negative.

72. Upon information and belief, on or about March 30, 2009, Defendant Hospital

Corporation/Rose permitted Kristen Parker to return to work in her capacity as a surgical scrub technician with no restrictions.

73. Upon information and belief, on or about March 30, 2009, Kristen Parker

resumed her regular practice of diverting Fentanyl syringes from Defendant Hospital Corporation/Rose.

74. Upon information and belief, on or about April 13, 2009, Kristen Parker was

caught looking in an anesthesia cart located in an operating room to which she had not been assigned.

75. Upon information and belief, on or about April 13, 2009, Defendant Hospital

Corporation/Rose suspended Kristen Parker from her employment.

76. Upon information and belief, on or about April 13, 2009, Defendant Hospital

Corporation/Rose subjected Kristen Parker to another urinalysis drug screen.

77. Upon information and belief, on April 13, 2009, this urinalysis drug screen tested

Kristen Parker's urine for the presence of Fentanyl.

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78. Upon information and belief, on or about April 21, 2009, Kristen Parker's

urinalysis drug screen tested positive for the presence of Fentanyl.

79. Upon information and belief, on April 22, 2009, Defendant Hospital

Corporation/Rose sent Kristen Parker a certified letter whereby Defendant Hospital Corporation/Rose terminated Kristen Parker's employment as a surgical scrub technician.

80. Upon information and belief, diversion of Fentanyl and other narcotic drugs by

health care workers is - and was for years prior to Kristen Parker's employment at Defendant Hospital Corporation/Rose - a rampant problem nationally, and specifically in Colorado.

81. Upon information and belief, employee diversion of Fentanyl and other narcotic

drugs at Defendant Hospital Corporation/Rose was not limited to Kristen Parker.

82. Upon information and belief, Defendant Hospital Corporation/Rose has had a

high incidence of employee diversion of Fentanyl and other narcotic drugs from Defendant Hospital Corporation/Rose.

83. Upon information and belief, between July 6, 2007 and April 13, 2009, at least 7

employees of Defendant Hospital Corporation/Rose - other than Kristen Parker - were reported to the CDPHE for diversions of Fentanyl and other narcotic drugs.

84. Upon information and belief, in spite of these regular drug diversions by health

care workers, Defendant Hospital Corporation/Rose failed to monitor, evaluate, and/or enforce applicable corporate policies and drug-related laws regarding the management, monitoring, and/or storage of Fentanyl and other controlled substances.

84a. Upon information and belief, in spite of these regular drug diversions by health care workers, Defendant Dr. Roth failed to monitor, evaluate, and/or enforce applicable corporate policies and drug-related laws regarding the management, monitoring, and/or storage of Fentanyl and other controlled substances.

85. Upon information and belief, at all times relevant, there existed at Defendant

Hospital Corporation/Rose a hospital-wide violation of applicable controlled substance management standards, policies, laws, and regulations.

III. FIRST CLAIM FOR RELIEF

(Negligent Hiring, Retention, Training, and Supervision - Defendant Hospital Corporation/Rose)

86. Plaintiff incorporates paragraphs 1 through 85 herein by reference.

87. At all relevant times, Defendant Hospital Corporation/Rose, through its

employees, agents, independent contractors and/or servants, was licensed healthcare facility in the business of providing medical services to the public.

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88. At all relevant times, Defendant Hospital Corporation/Rose, independently and

through its employees, agents, independent contractors and/or servants, received a benefit from the public's utilization of the medical services provided by Defendant Hospital Corporation/Rose.

89. At all relevant times, Kristen Parker was an agent, employee and/or servant of

Defendant Hospital Corporation/Rose; the nature Kristen Parker's agency, employment, and or servitude required Kristen Parker's presence and assistance during the professional rendering of surgical treatment to Defendant Hospital Corporation/Rose's patients. Kristen Parker's agency, employment, and/or servitude gave Kristen Parker direct access to numerous areas of the hospital where Fentanyl and other narcotic drugs were left unattended, unsecured, and unsupervised.

90. Defendant Hospital Corporation/Rose knew or should have known that members

of the public, including Ms. Fleisher, would come into contact with its employees, agents, independent contractors and/or servants, including surgical scrub technician Kristen Parker.

91. Defendant Hospital Corporation/Rose knew or should have known that the public

could suffer foreseeable harm if its employees, agents, independent contractors and/or servants, including Kristen Parker, failed to perform their assigned duties in a safe, skillful and competent manner.

92. Defendant Hospital Corporation/Rose, therefore, owed a duty of care to Ms.

Fleisher in making hiring and retention decisions, so as to avoid subjecting third parties, including Ms. Fleisher, to foreseeable risks of harm presented by certain qualities of Defendant Hospital Corporation/Rose's employees.

93. Defendant Hospital Corporation/Rose further owed a duty to reasonably train and

supervise its employees, including Kristen Parker, in order to mitigate against foreseeable harms to third parties, including Ms. Fleisher, presented by a specific employee's occupational retention.

94. Because the nature of its trade - specifically, the rendering of health care and

other medical services - inherently subjects third persons to a heightened potential for suffering harm, Defendant Hospital Corporation/Rose was at all times relevant burdened with a heightened duty to reasonably hire, retain, train, and supervise its employees in order to protect third parties from foreseeable harm.

95. At all relevant times, Defendant Hospital Corporation/Rose knew or should have

known that Kristen Parker had a history of intravenous drug abuse.

96. At all relevant times, Defendant Hospital Corporation/Rose knew or should have

known that Kristen Parker had a fixation with needles, and that she specifically and publically announced her fascination with "the way [needles] feel."

97. At all relevant times, Defendant Hospital Corporation/Rose knew or should have

known that Kristen Parker was infected with the Hepatitis C.

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98. At all relevant times, Defendant Hospital Corporation/Rose should have known

that Kristen Parker's personal attributes of character and/or prior conduct, combined with the specific nature of Kristen Parker's employment, would subject third parties, including Ms. Fleisher, to an unreasonable risk of suffering foreseeable harm.

99. Defendant Hospital Corporation/Rose breached its duty to Ms. Fleisher by

negligently hiring and retaining Kristen Parker as a surgical scrub technician tasked with direct participation providing patient care services to Ms. Fleisher, and given access to controlled substances and narcotics.

100. Defendant Hospital Corporation/Rose further breached its duty to Ms. Fleisher by failing to take reasonable training and/or supervisory actions to protect Ms. Fleisher from suffering harms, about which Defendant Hospital Corporation/Rose knew or reasonably should have know, which were presented by Kristen Parker's employment as a surgical scrub technician.

101. As a direct and proximate result of Defendant Hospital Corporation/Rose's negligent hiring, retention, training, and supervision of Kristen Parker, Ms. Fleisher has suffered injuries, damages and losses, including exposure to and contraction of chronic Hepatitis C. As a result, Ms. Fleisher has been or will be required to undergo additional medical and surgical procedures, has incurred expenses for therapy, medicines and other similar expenses and will continue to incur additional medical expenses indefinitely in the future. Ms. Fleisher has suffered loss of income and impairment of eaming capacity. Ms. Fleisher has sustained injuries that are permanently disfiguring and disabling and which will impair her ability to lead a full, useful and normal life. Ms. Fleisher has suffered and will continue to suffer mental anguish, pain and suffering, loss of enjoyment of life, and damages for permanent impairment.

IV. SECOND CLAIM FOR RELIEF

(Premises Liability - Defendant Hospital Corporation/Rose)

102. Plaintiff incorporates paragraphs 1 through 101 herein by reference.

103. At all relevant times, and pursuant to C.R.S. § 13-21-115(1), Defendant Hospital Corporation/Rose was a "landowner" of the real property located at 4567 E. 9th Avenue, Denver, Colorado 80220.

104. At all relevant times, and pursuant to pursuant to C.R.S. § 13-21-115(5)(a), Ms.

Fleisher was an "invitee" of Defendant Hospital Corporation/Rose, by virtue of the mutually beneficial commercial purpose giving rise to Ms. Fleisher's presence upon Defendant Hospital Corporation/Rose's premises.

105. Thus, at all relevant times, Defendant Hospital Corporation/Rose owed to Ms.

Fleisher a duty to not unreasonably fail to exercise reasonable care to protect against dangers presented by the condition of its real property, or by the activities conducted or circumstances

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existing thereon, of which Defendant Hospital Corporation/Rose knew or reasonably should have known.

106. Defendant Hospital Corporation/Rose had a duty to protect its patients, including Ms. Fleisher, from the foreseeable harms presented by the serious and prevalent problem of drug diversion and drug impairment by health care workers, as well as from foreseeable harm of transmission of Hepatitis C and other communicable diseases from Defendant Hospital Corporation/Rose's infected employees to its patients.

107. Defendant Hospital Corporation/Rose breached this duty owed to Ms. Fleisher by unreasonably failing to exercise reasonable care to protect against the dangers presented by activities conducted and/or circumstances existing on its premises of which Defendant Hospital Corporation/Rose knew or reasonably should have known. Specifically, Defendant Hospital Corporation/Rose unreasonably failed to exercise reasonable care to protect against dangers - of which Defendant Hospital Corporation/Rose knew or reasonably should have known - inherent in its commercial involvement in the sale and use of narcotic drugs, as well as syringes, needles, and other sharps, and in the employment of Hepatitis C-infected individuals to handle such goods.

108. Defendant Hospital Corporation/Rose breached this duty by unreasonably failing to exercise reasonable care to enforce its own internal policies and procedures relating to the storage and accountability of narcotic controlled substances, by failing to take reasonable steps to ensure hospital-wide compliance with those policies and procedures, as well as with applicable law, and by failing to take reasonable action to detect and stop patterns of drug diversion by its employees on its premises.

109. As a direct and proximate result of Defendant Hospital Corporation/Rose's breach, Ms. Fleisher has suffered injuries, damages and losses more fully described above.

v. THIRD CLAIM FOR RELIEF

(Respondeat Superior - Defendant Hospital Corporation/Rose)

110. Plaintiff incorporates paragraphs 1 through 109 herein by reference.

111. Defendant Hospital Corporation/Rose is responsible for the acts and omissions of its agents, employees, independent contractors and/or servants conducted within those agents', employees', independent contractors', and/or servants' scopes of employment.

112. Upon information and belief, at all times relevant, individuals responsible for preparing, dispensing, monitoring, and administering medications, including Fentanyl, for use by anesthesiologists during surgical procedures, such individuals including but not limited to Kristen Parker, other surgical scrub technicians, Defendant Dr. Roth, other anesthesiologists, anesthesiologist technicians, pharmacists, and pharmacy technicians were agents, employees, independent contractors and/or servants of Defendant Hospital Corporation/Rose acting within the course and scope of their employment or within their authority as agents of Defendant Hospital Corporation/Rose.

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113. Defendant Hospital Corporation/Rose's agents, employees and/or servants owed a duty to Ms. Fleisher to exercise reasonable care in preparing, dispensing, monitoring, and administering such medications to prevent conversion or contamination which would subject Ms. Fleisher to foreseeable harm during the course of her January 22, 2009 surgical procedure.

114. Defendant Hospital Corporation/Rose's agents, employees and/or servants, while acting within the scope of employment, breached this duty owed to Ms. Fleisher by failing to properly prepare, dispense, monitor, and administer such medications to prevent conversion or contamination which would subject Ms. Fleisher to foreseeable harm on January 22,2009.

115. As a direct and proximate result of this negligence by Defendant Hospital Corporation/Rose's employees, Ms. Fleisher has suffered injuries, damages, and losses more fully described above.

VI. FOURTH CLAIM FOR RELIEF

(Violation of the Consumer Protection Act - Defendant Hospital Corporation/Rose)

116. Plaintiff incorporates paragraphs 1 through 115 herein by reference.

117. The Colorado Consumer Protection Act ("CCPA") protects the public as consumers in situations where consumers do not have and cannot reasonably gain access to truthful information relevant to a contemplated transaction unless it comes from the persons or entity offering the service or good.

118. The healthcare services provided by Defendant Hospital Corporation/Rose to Ms.

Fleisher constitute goods, services, or property pursuant to C.R.S. § 6-1-113(1 )(a), and Ms. Fleisher was an actual consumer of those goods, services or property at all times relevant.

119. Defendant Hospital Corporation/Rose's conduct occurred in the course of its business as a health care facility in the business of providing medical care, treatment, and other healthcare services, including the provision of ambulatory surgical care to members of the public, including Ms. Fleisher.

120. The provision of surgical services in Colorado is a matter of strong public interest and concern, and Defendant Hospital Corporation/Rose's conduct significantly impacts members of the public as actual or potential consumers of these types of services.

121. Defendant Hospital Corporation/Rose engaged in deceptive trade practices in the course of its business, vocation or occupation by making false statements of fact, knowingly and/or recklessly and willfully without regard to their consequences, with the intent to deceive and/or mislead Ms. Fleisher. Such deception induced Ms. Fleisher to act and/or to refrain from acting, and the deception had the actual capacity to deceive Ms. Fleisher.

122. The deceptive practices engaged in by Defendant Hospital Corporation/Rose include, but are not limited to: false advertising, providing false information on its website, and

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representing to prospective patients, such as Ms. Fleisher, the nature of its services and qualifications without an intent to honor those statements in violation of C.R.S. § 6-1-105(e); failing to disclose material information regarding the qualifications of employees and services provided in violation of C.R.S. § 6-1-105(u); and making other false and misleading statements of fact concerning the quality of employees and standards for patient safety in violation of C.R.S. § 6-1-105(g).

123. As a direct and proximate result of Defendant Hospital Corporation/Rose's violations of the CCPA, Ms. Fleisher has suffered injuries, damages, and losses more fully described above.

124. Defendant Hospital Corporation/Rose engaged in bad faith conduct within the meaning ofC.R.S. § 6-1-113(2.3), entitling Ms. Fleisher to an award of treble damages, attorney's fees and costs pursuant to C.R.S. § 6-1-113(2)(III).

VII. FIFTH CLAIM FOR RELIEF

(Breach of the Implied Warranty of Merchantability - Defendant Hospital Corporation/Rose)

125. Plaintiff incorporates paragraphs 1 through 124 herein by reference.

126. On January 22, 2009, Defendant Hospital Corporation/Rose contracted to sell to Ms. Fleisher certain goods consisting of sterile syringes, sterile needles, and the pain medication Fentanyl. Defendant Hospital Corporation/Rose contracted with Ms. Fleisher to provide Fentanyl for the price of $89.54 per 5 mL dosage.

127. Pursuant to C.R.S. § 4-2-104(1), Defendant Hospital Corporation/Rose is a merchant with respect to the goods of the kind represented to be sold to Ms. Fleisher, namely goods represented to be sterile syringes, sterile needles and Fentanyl.

128. Pursuant to C.R.S. § 4-2-314, Defendant Hospital Corporation/Rose's sale of sterile syringes, sterile needles and the pain medication Fentanyl to Ms. Fleisher was burdened by an implied warranty that those goods were merchantable.

129. Defendant Hospital Corporation/Rose breached the implied warranty of merchantability in the sale of sterile syringes to Ms. Fleisher. The syringes were not merchantable, pursuant to C.R.S. 4-2-314(2)(a) and (2)(c), in that they could not pass without objection in the trade under the contract description, and they were not fit for the ordinary purpose for which such goods are used. As a result, Ms. Fleisher did not receive sterile syringes as impliedly warranted by Defendant Hospital Corporation/Rose to be merchantable.

130. Defendant Hospital Corporation/Rose breached the implied warranty of merchantability in the sale of sterile needles to Ms. Fleisher. The needles were not merchantable, pursuant to C.R.S. 4-2-314(2)(a) and (2)(c), in that they could not pass without objection in the trade under the contract description, and they were not fit for the ordinary

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purpose for which such goods are used. As a result, Ms. Fleisher did not receive sterile needles as impliedly warranted by Defendant Hospital Corporation/Rose to be merchantable.

131. Defendant Hospital Corporation/Rose breached the implied warranty of merchantability in the sale of Fentanyl to Ms. Fleisher The Fentanyl was not merchantable, pursuant to C.R.S. § 4-2-314(2)(a), (2)(c), and (2)(f), in that it could not pass without objection in the trade under the contract description, was not fit for the ordinary purposes for which such goods are used, and did not conform to the promises or affirmations of fact made on the container or label: As a result, Ms. Fleisher did not receive Fentanyl as impliedly warranted by Defendant Hospital Corporation/Rose to be merchantable.

132. As a direct and proximate result of Defendant Hospital Corporation/Rose's breach of the implied warranty of merchantability, Ms. Fleisher has suffered injuries, damages, and losses more fully described above.

VIII. SIXTH CLAIM FOR RELIEF

(Breach of the Implied Warranty of Fitn ess for a Particular Purpose - Defendant Hospital Corporation/Rose)

133. Plaintiff incorporates paragraphs 1 through 132 herein by reference.

134. On January 22, 2009, Defendant Hospital Corporation/Rose contracted to sell to Ms. Fleisher certain goods consisting of sterile syringes, sterile needles, and the pain medication Fentanyl. Defendant Hospital Corporation/Rose contracted with Ms. Fleisher to provide Fentanyl for the price of $89.54 per 5 mL dosage.

135. Pursuant to C.R.S. § 4-2-104(1), Defendant Hospital Corporation/Rose is a merchant with respect to the goods of the kind represented to be sold to Ms. Fleisher, namely goods represented to be sterile syringes, sterile needles and Fentanyl.

136. Defendant Hospital Corporation/Rose knew, at the time of the sale, that Ms.

Fleisher was relying on Defendant Hospital Corporation/Rose's knowledge, skill, and judgment when Ms. Fleisher contracted to purchase sterile syringes, sterile needles and Fentanyl from Defendant Hospital Corporation/Rose. Accordingly, pursuant to c.R.S. § 4-2-315, there arose in Defendant Hospital Corporation/Rose's sale of syringes, needles and Fentanyl to Ms. Fleisher an implied warranty that those goods were fit for the particular purpose(s) for which those goods were required.

137. Defendant Hospital Corporation/Rose breached the implied warranty of fitness for a particular purpose in the sale of syringes to Ms. Fleisher. Defendant Hospital Corporation/Rose breached this warranty, pursuant to C.R.S. 4-2-315, in that Ms. Fleisher relied on Defendant Hospital Corporation/Rose's skill and judgment to furnish suitable syringes, and the syringes actually furnished were not fit for the purpose for which they were required. As a result, Ms. Fleisher did not receive sterile syringes as impliedly warranted by Defendant Hospital Corporation/Rose to be fit for their particular purpose.

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138. Defendant Hospital Corporation/Rose breached the implied warranty of fitness for a particular purpose in the sale of needles to Ms. Fleisher. Defendant Hospital Corporation/Rose breached this warranty, pursuant to C.R.S. § 4-2-3 I 5, in that Ms. Fleisher relied on Defendant Hospital Corporation/Rose's skill and judgment to furnish suitable needles, and the needles actually furnished were not fit for the purpose for which they were required. As a result, Ms. Fleisher did not receive sterile needles as impliedly warranted by Defendant Hospital Corporation/Rose to be fit for their particular purpose.

139. Defendant Hospital Corporation/Rose breached the implied warranty of fitness for a particular purpose in the sale of Fentanyl to Ms. Fleisher. Defendant Hospital Corporation/Rose breached this warranty, pursuant to C.R.S. § 4-2-315, in that Ms. Fleisher relied on Defendant Hospital Corporation/Rose's skill and judgment to furnish the suitable medication, and the goods actually furnished were not fit for the purpose for which they were required. As a result, Ms. Fleisher did not receive Fentanyl as impliedly warranted by Defendant Hospital Corporation/Rose to be fit for its particular purpose.

140. As a direct and proximate result of Defendant Hospital Corporation/Rose's breach of the implied warranty of fitness for a particular purpose, Ms. Fleisher has suffered injuries, damages, and losses more fully described above.

IX. SEVENTH CLAIM FOR RELIEF

(Medical Negligence - Defendant Dr. Roth)

14 I. Plaintiff incorporates paragraphs 1 through 140 herein by reference.

142. On January 22, 2009, Defendant Dr. Roth was tasked with serving as the anesthesiologist during Ms. Fleisher's procedure at Defendant Hospital Corporation/Rose. This responsibility required Defendant Dr. Roth to dispense, monitor, and administer certain anesthetic drugs, including Fentanyl, to Ms. Fleisher.

143. In performing his duties to dispense, monitor, and administer these drugs during Ms. Fleisher's procedure, Defendant Dr. Roth was required to exercise that degree of reasonable and ordinary care, skill, and ability ordinarily exercised by other anesthesiologists under the same or similar circumstances.

144. Defendant Dr. Roth breached his duty to exercise that degree of care, skill, and ability by failing to maintain exclusive control over the anesthetics, medications, and instrumentalities located in the operating room for which he was responsible. Namely, Defendant Dr. Roth failed to honor his duty to properly or adequately supervise, administer, and manage Fentanyl prior to and/or during Ms. Fleisher's procedure.

145. Defendant Dr. Roth breached this duty, and Kristen Parker was accordingly able

to convert Fentanyl intended for administration upon Ms. Fleisher, and insert in its place syringe(s) containing saline. Upon information and belief, this second syringe, needle, and/or the saline therein was contaminated with Hepatitis C.

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146. Defendant Dr. Roth further breached this duty to by failing to identify and recognize that he had injected Ms. Fleisher with saline, rather than Fentanyl. Defendant Dr. Roth negligently failed to properly monitor Ms. Fleisher's level of pain and the effectiveness of the Fentanyl prior to and/or during Ms. Fleisher's procedure.

147. On January 22, 2009, Ms. Fleisher placed her trust and confidence in Defendant Dr. Roth with respect to his provision of anesthetic services to Ms. Fleisher while she underwent surgery at Defendant Hospital Corporation/Rose.

148. Ms. Fleisher acted reasonably when she placed her trust and confidence in Defendant Dr. Roth with respect to his provision of anesthetic services to Ms. Fleisher during her January 22, 2009 surgery.

149. Ms. Fleisher's trust and confidence was invited, accepted, and acquiesced in by Defendant Dr. Roth.

150. Defendant Dr. Roth assumed responsibility to act in Ms. Fleisher's best interests with respect to Defendant Dr. Roth's provision of anesthetic services to Ms. Fleisher.

151. Defendant Dr. Roth breached his fiduciary duty to act in Ms. Fleisher's best interests during his provision of anesthetic services to Ms. Fleisher. Specifically, Defendant Dr. Roth failed to take reasonable care to ensure that the injectable narcotic drugs in his control were adequately secured and accounted.

152. As a direct and proximate result of Defendant Dr. Roth's negligence, Ms. Fleisher has suffered injuries, damages, and losses more fully described above.

x. EIGHTH CLAIM FOR RELIEF

(Negligence - Defendant Hospital Corporation/Rose)

153. Plaintiff incorporates paragraphs 1 through 152 by reference.

154. On January 22, 2009, Ms. Fleisher placed herself under the care and treatment of Defendant Hospital Corporation/Rose for purposes of undergoing a surgical procedure.

155. Defendant Hospital Corporation/Rose owed to Ms. Fleisher a duty to exercise the degree of care, skill, caution, diligence and foresight exercised by and expected of a reasonable ambulatory surgical center in the business of providing medical services to the public in the same or similar circumstances.

156. Defendant Hospital Corporation/Rose breached this duty and was negligent in its care and treatment of Ms. Fleisher. Defendant Hospital Corporation/Rose's deviation from the standard of care included, but was not limited to, the following:

a. failure to make preventing transmission of infectious agents, including the Hepatitis C, a priority for the healthcare organization;

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b. failure to provide a functional and sanitary environment for the provision of surgical services and failure to adhere to professionally accepted standards for such provision;

c. failure to properly or adequately document employee competency in the access to and handling of potential sources of infectious agents, including the Hepatitis C;

d. failure to properly or adequately sequester potential sources of exposure to infectious agents, including the Hepatitis C, from Defendant Hospital Corporation/Rose's patients;

e. failure to use single-dose vials of medication and other surgical solutions for intravenous injection in order to minimize patient exposure to infectious agents, including the Hepatitis C;

f. use of a single bag of intravenous saline solution as a common source of supply for multiple patients, thereby increasing patient risk of exposure to infectious agents, including the Hepatitis C;

g. failure to properly or adequately isolate disease-carrying or at-risk-for-disease employees, agents, independent contractors, and/or servants from medication, intravenous solutions, syringes, needles, and other potential transmitters of infections agents, including the Hepatitis C;

h. failure to properly or adequately maintain medical records and inventory of medical supplies;

I. failure to properly or adequately provide a safe or sanitary environment, properly construed, equipped, and maintained to protect the health and safety of Defendant Hospital Corporation/Rose's patients;

J. failure to properly or adequately design, equip, and staff each operating room so that the types of surgeries conducted therein could be performed in a manner that protects the lives and ensures the physical safety of all individuals in the area;

k. failure to properly or adequately ensure that members of Defendant Hospital Corporation/Rose's medical staff were legally and professionally qualified for the positions each member held and for the performances of privileges thereby granted; and

l. failure to properly recognize, investigate, and document patients' complaints of pain after being removed from the surgical room.

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157. On January 22, 2009, Ms. Fleisher placed her trust and confidence in Defendant Hospital Corporation/Rose with respect to Defendant Hospital Corporation/Rose's facilitation of surgical services to Ms. Fleisher.

158. Ms. Fleisher acted reasonably when she placed her trust and confidence in Defendant Hospital Corporation/Rose with respect to Defendant Hospital Corporation/Rose's facilitation of surgical services to Ms. Fleisher during her January 22, 2009 surgery.

159. Ms. Fleisher's trust and confidence was invited, accepted, and acquiesced in by Defendant Hospital Corporation/Rose.

160. Defendant Hospital Corporation/Rose assumed responsibility to act in Ms.

Fleisher's best interests with respect to Defendant Hospital Corporation/Rose's facilitation of surgical services to Ms. Fleisher.

161. Defendant Hospital Corporation/Rose failed to honor its responsibility to act in Ms. Fleisher's best interests during Defendant Hospital Corporation/Rose's facilitation of surgical services to Ms. Fleisher. Specifically, Defendant Hospital Corporation/Rose continued to expose its patients such as Ms. Fleisher to an unreasonable and pervasive risk of harm in Defendant Hospital Corporation/Rose's operating rooms. Upon information and belief, Defendant Hospital Corporation/Rose so continued this practice out of concern for Defendant Hospital Corporation/Rose's own financial interest in avoiding accusations of improperly discriminating against Hepatitis C-infected employees.

162. By continuing to permit Kristen Parker unsupervised access to unsecured narcotic drugs, and by continuing to permit Kristen Parker to assist in Defendant Hospital Corporation/Rose's facilitation of surgical services to patients such as Ms. Fleisher, and by continuing to do so based on its own financial interests, Defendant Hospital Corporation/Rose breached its duty to act in Ms. Fleisher's best interests with respect to Defendant Hospital Corporation/Rose's facilitation of provision services to Ms. Fleisher..

163. As a direct and proximate result of Defendant Hospital Corporation/Rose's negligence, Ms. Fleisher has suffered injuries, damages, and losses more fully described above.

XI. NINTH CLAIM FOR RELIEF

(Negligence Per Se - Defendant Hospital Corporation/Rose)

164. Plaintiff incorporates paragraphs 1 though 163 herein by reference.

165. At all times relevant, the provisions of the Colorado Licensing of Controlled Substances Act, C.R.S. §§ 12-22-301 to 12-22-304, were fully in effect. The Act and its controlling regulations make it unlawful for any Schedule II controlled substances such as Fentanyl to be stored in an unlocked, unmonitored, or otherwise unsecured manner, or to dispense Section II substances in a manner which fails to reasonably protect against the diversion of those substances.

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166. Upon information and belief, and all times relevant, Defendant Hospital Corporation/Rose conducted business in breach of the statutory duties imposed by the Controlled Substances Act. Specifically, the conduct of Kristen Parker between October 22, 2008 and April 22,2009, and the similar conduct of others of Defendant Hospital Corporation/Rose's employees prior to and during that time period, demonstrates that Defendant Hospital Corporation/Rose conducted its business operations in contravention of those statutory duties on a regular and hospital-wide basis.

167. But for Defendant Hospital Corporation/Rose's violation of its statutory duties regarding the proper methods of storing, dispensing, and administering Schedule II controlled substances, Ms. Fleisher would not have contracted chronic Hepatitis C from Kristen Parker.

168. As a direct and proximate result of Defendant Hospital Corporation/Rose's breach of its statutory duties under the Controlled Substances Act, Ms. Fleisher has suffered, injuries, damages, and losses more fully described above.

XXII. TENTH CLAIM FOR RELIEF (Negligence Per Se - Defendant Dr. Roth)

169. Plaintiff incorporates paragraphs 1 though 168 by reference.

170. At all times relevant, the provisions of the Colorado Licensing of Controlled Substances Act, eR.S. §§ 12-22-301 to 12-22-304, were fully in effect. The Act and its controlling regulations make it unlawful for any Schedule II controlled substances such as Fentanyl to be stored in an unlocked, unmonitored, or otherwise unsecured manner, or to dispense Section II substances in a manner which fails to reasonably protect against the diversion of those substances.

171. Upon information and belief, Defendant Dr. Roth breached his statutory duties under the Controlled Substances Act as those duties relate to his care for and treatment of Ms. Fleisher. Specifically, Defendant Dr. Roth obtained Fentanyl from Defendant Hospital Corporation/Rose's automated narcotic dispensary station, and the Defendant Dr. Roth failed to supervise, monitor, or otherwise secure that drug in order to reasonably prevent against the likelihood of diversion.

172. But for Defendant Dr. Roth's failure to abide by his statutory duties of care regarding the dispensing, storing, and administration of Schedule II controlled substances, Ms. Fleisher would not have contracted Hepatitis C from Kristen Parker.

173. As a direct and proximate cause of Defendant Dr. Roth's breach of his statutory duties under the Controlled Substances Act, Ms. Fleisher has suffered, injuries, damages, and losses more fully described above.

XIII. ELEVENTH CLAIM FOR RELIEF

(Strict Product Liability: Misrepresentation - Defendant Hospital Corporation/Rose)

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174. Plaintiff incorporates paragraphs I through 173 herein by reference.

175. On January 22, 2009, Defendant Hospital Corporation/Rose contracted to sell to Ms. Fleisher certain goods consisting of sterile syringes, sterile needles, and Fentanyl.

176. Pursuant to C.R.S. § 13-21-401 (I), Defendant Hospital Corporation/Rose may be liable as a "manufacturer" for purposes of strict product liability because Defendant Hospital Corporation/Rose - through its agents, employees, independent contractors and/or servants - significantly modified or altered the goods at issue after those goods came into Defendant Hospital Corporation/Rose's possession, and before those goods were ultimately sold to Ms. Fleisher.

177. During all times relevant, Defendant Hospital Corporation/Rose was regularly engaged in the business of selling sterile syringes, sterile needles, and the pain medication Fentanyl for patient use.

178. Defendant Hospital Corporation/Rose, through its conduct, words, and/or a combination thereof, misrepresented to the public at large facts concerning the character and quality of the syringes, needles, and Fentanyl that would be material to any potential purchasers and users of those goods.

179. Defendant Hospital Corporation/Rose, through its conduct, words, and/or a combination thereof, misrepresented to Ms. Fleisher facts concerning the character and quality of the syringes that would be material to potential purchasers and users of the syringes.

180. Defendant Hospital Corporation/Rose, through its conduct, words, and/or a combination thereof, misrepresented to Ms. Fleisher facts concerning the character or quality of the needles that would be material to potential purchasers and users of the needles.

181. Defendant Hospital Corporation/Rose, through its conduct, words, and/or a combination thereof, misrepresented to Ms. Fleisher facts concerning the character or quality of the pain medication Fentanyl that would be material to potential purchasers and users of the Fentanyl.

182. Ms. Fleisher, as a purchaser and user of the syringes, needles, and Fentanyl, reasonably relied on Defendant Hospital Corporation/Rose's material misrepresentations concerning the character and quality of those syringes, needles, and Fentanyl.

183. Ms. Fleisher was a person who Defendant Hospital Corporation/Rose reasonably expected to use and/or be affected by those syringes, needles, and Fentanyl.

184. As a direct and proximate result of her reasonable reliance on Defendant Hospital Corporation/Rose's material misrepresentation concerning the character and quality of the syringes, needles, and Fentanyl sold to Ms. Fleisher, Ms. Fleisher has suffered injuries, damages, and losses more fully described above.

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XIV. TWELFTH CLAIM FOR RELIEF

(Medical Monitoring - Defendant Hospital Corporation/Rose)

185. Plaintiff incorporates paragraphs 1 through 184 herein by reference.

186. As a direct result of the tortious conduct of Defendant Hospital Corporation/Rose, Ms. Fleisher has been significantly exposed to a proven hazardous substance, namely the Hepatitis C, in levels greater than the levels of exposure which members of the public-at-large encounter throughout the happenings of their everyday lives.

187. As a proximate result of this significant exposure, Ms. Fleisher has suffered a direct and cognizable injury, namely infection with chronic Hepatitis C.

188. As a direct and proximate result of this exposure and attendant injury, Ms.

Fleisher has a significantly increased risk of contracting a serious latent disease, including but not limited to serious, long-term, life threatening health problems such as cirrhosis of the liver, liver failure, and liver cancer. In the absence of early detection, these latent conditions can - and often do - result in death.

189. Current medical and scientific technology provides for monitoring procedures that make early detection and treatment of Hepatitis C-related diseases possible, practicable, and effectual.

190. Due to Ms. Fleisher's exposure to and contraction of Hepatitis C, a reasonable physician would recommend that Ms. Fleisher undergo regular medical testing, monitoring, and surveillance in order to maximize the potential for detecting the early onset of Hepatitis C-related disease.

191. Ms. Fleisher's prescribed medical monitoring regime is different from that which would normally have been recommended for Ms. Fleisher, had Ms. Fleisher not contracted Hepatitis C.

192. Due to the serious nature of Hepatitis C-related liver disease, Ms. Fleisher's prescribed medical monitoring regime is reasonably necessary according to modem medical and scientific principles.

193. Due to the unpleasant, invasive, and costly nature of Ms. Fleisher's prescribed medical monitoring regime - the need for which is a direct and proximate result of Defendant Hospital Corporation/Rose's tortious conduct - the establishment of medical monitoring fund is reasonably necessary and highly appropriate in this case.

194. Defendant Hospital Corporation/Rose should establish this medical monitoring fund to pay for the costs of monitoring Ms. Fleisher's condition, as well as any costs associated with the identification and treatment of any health problem related to Ms. Fleisher's contraction of Hepatitis C.

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xv. THIRTEENTH CLAIM FOR RELIEF (Reckless/Intentional Infliction of Emotional Distress - Defendant Hospital Corporation/Rose)

195. Plaintiff incorporates paragraphs 1 through 194 herein by reference.

196. With respect to the conduct alleged in this Complaint, Defendant Hospital Corporation/Rose engaged in conduct so outrageous in character, and extreme in degree, that knowledge of all the relevant facts would engender the resentment of any reasonable member of the community against Defendant Hospital Corporation/Rose.

197. Defendant Hospital Corporation/Rose engaged in this extreme and outrageous conduct when Defendant Hospital Corporation/Rose was aware that Ms. Fleisher, by virtue of her need for surgery, among other factors, was peculiarly susceptible to falling victim to emotional distress.

198. Defendant Hospital Corporation/Rose engaged in this extreme and outrageous conduct recklessly or with intent because Defendant Hospital Corporation/Rose knew or should have known that its conduct was a substantially probable source of emotional distress for Ms. Fleisher.

199. As a result of this intentional or reckless conduct, Defendant Hospital Corporation/Rose caused Ms. Fleisher to suffer emotional distress, including regular and intense feelings of nervous shock, fright, horror, grief, shame, humiliation, embarrassment, anger, chagrin, disappointment, and worry.

200. Specifically, Ms. Fleisher has suffered, and continues to suffer, severe emotional distress including but not limited to worrying about whether she contracted Hepatitis C from Kristen Parker, worrying whether her viral sequencing and genotype results would satisfy Defendant Hospital Corporation/Rose that she contracted Hepatitis C on its premises, and worrying whether her contraction of Hepatitis C will result in cirrhosis, liver cancer, the need for a liver transplant, or even her premature death.

201. Additionally, Ms. Fleisher has suffered, and continues to suffer severe, emotional distress because Ms. Fleisher has recently undergone certain medical testing which indicates that Ms. Fleisher's Hepatitis C is rapidly taking a toll on her liver, and this aggressive progression of her hepatic deterioration has further caused, and continues to cause, Ms. Fleisher stress, concern, and other forms of severe emotional distress.

PLAINTIFF REQUESTS A TRIAL TO A JURY OF SIX.

Respectfully submitted this, the 2nd day of May, 2010.

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LEVENTHAL, BROWN & PUGA, P.C.

A duly signed Original is onfile at the Offices of Leventhal, Brown and Puga, P.e., signed by Hollynd Hoskins, Esq.

By: sf Hollynd Hoskins

Jim Leventhal, #5815 Hollynd Hoskins, #21890 Attorneys for Plaintiff

Plaintiffs' Address: 620 S. Alton Way, #6B Denver, CO 80247

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