Carmen Correa, As Administratrix for the Estate of Yarushka Rivera
Andreas P. Schoeck, M.D. et al No. 135620
December 27, 2016
MEMORANDUM OF DECISION AND ORDER
J. CURRAN, Associate Justice.
that Yarushka Rivera suffered a fatal seizure on October 29,
2009, because she did not receive her prescription for the
anti-epilectic drug Topamax, the plaintiff Carmen Correa, the
administratrix for Ms. Rivera's estate, commenced this
action for wrongful death, punitive damages, and conscious
pain and suffering against Ms. Rivera's treating
neurologist, Andreas P. Schoeck, M.D., Dr. Schoeck's
employer, New England Neurological Associates, P.C., and Ms.
Rivera's pharmacy, Walgreen Eastern Co., Inc.
Walgreen's moved for summary judgment on all of the
plaintiff's claims against it, and this court allowed
that motion in a margin endorsement in June 2016, and in
doing so, invited Walgreen's to file a motion for the
entry of a separate and final judgment.
case is before the court on the plaintiff's motion under
Mass.R.Civ.P. 54(b) " to revise or reconsider" the
June 2016 Order or, alternatively, to enter separate and
final judgment against Walgreen's. For the following
reasons, the plaintiff's motion is ALLOWED in part and
DENIED in part.
following facts, as set forth in the summary judgment record,
are undisputed and, where disputed, viewed in the light most
favorable to the plaintiff as the non-moving party. See,
Foster v. Group Health, Inc., 444 Mass. 668, 672,
830 N.E.2d 1061 (2005).
suffering a seizure in May 2009, Ms. Rivera came under Dr.
Schoeck's care. Dr. Schoeck prescribed Topamax to treat
her seizure disorder. On June 13, 2009, Ms. Rivera filled her
Topamax prescription at Walgreen's Pharmacy in Lawrence,
Massachusetts. Ms. Rivera filled another Topamax prescription
at Walgreen's on July 26, 2009. At that time, a
Walgreen's pharmacist informed Ms. Rivera that her
insurer, MassHealth would not cover any subsequent
prescriptions for Topamax without " prior
authorization" from Dr. Schoeck, and that she should
contact Dr. Schoeck to obtain this required documentation.
Rivera had a second seizure on September 2, 2009. On
September 8, 2009, Walgreen's informed her, the
plaintiff, and Ms. Rivera's stepfather, Julio Escobar,
that MassHealth had denied coverage for Ms. Rivera's
Topamax prescription for lack of prior authorization.
Therefore, Walgreen's could not fill Ms. Rivera's
Topamax prescription at that time unless she paid for it. Ms.
Rivera and her family attempted to fill her Topamax
prescription at Walgreen's on September 18, 2009,
September 28, 2009, October 12, 2009, and October 13, 2009.
Mr. Escobar attempted to obtain the prior authorization by
telephoning Dr. Schoeck's office several times between
July and October 2009.
pharmacy computer system permitted the pharmacist to send a
courtesy fax to the prescribing physician whenever MassHealth
denied coverage for lack of prior authorization.
Walgreen's pharmacists were not required to send these
faxes; Walgreen's did not maintain a record of these
faxes; and Walgreen's did not monitor whether the
prescribing physicians actually received the faxes. The
plaintiff contends that Walgreen's pharmacists told Ms.
Rivera and her family that they would send Dr. Schoeck a fax
and telephone his office about the required prior
in June 2009, Ms. Rivera's psychiatrist, Dr. Juan Alonzo
diagnosed Rivera with bipolar disorder and depression. In
July 2009, Dr. Alonzo prescribed Lamictal to Ms. Rivera,
directing her to take twenty-five milligrams at bedtime, and
to increase the dosage to fifty milligrams after two weeks.
At some point, Ms. Rivera's Lamictal dosage was increased
to seventy-five milligrams, which Dr. Alonzo decreased to
fifty milligrams on October 14, 2009.
Rivera died after suffering a third seizure on October 29,
Motion for Reconsideration
54(b) of the Massachusetts Rules of Civil Procedure provides
that " any order or other form of decision however
designated, which adjudicates fewer than all the claims or
the rights and liabilities of fewer than all the parties
shall not terminate the action as to any of the claims or
parties, and the order or other form of decision is subject
to revision at any time before the entry of judgment
adjudicating all the claims and the rights and liabilities of
all the parties." The plaintiff seeks relief pursuant to
this provision, asking the court " to revise or
reconsider" the June 2016 Order.
[I]t is within the inherent authority of a trial judge to
'reconsider decisions made on the road to final
judgment.'" Herbert A. Sullivan, Inc. v. Utica
Mut. Ins. Co., 439 Mass. 387, 401, 788 N.E.2d 522 (2003)
(citations omitted). Notwithstanding that this " power
to reconsider a case, an issue, or a question of fact or law,
once decided, remains vested in the court until a final
judgment or decree is entered, a judge is not obligated to
exercise such power." Id. Reconsideration
" calls upon the discretion of the motion judge."
Audubon Hill S. Condo. Ass'n v. Community Ass'n
Underwriters of Am., Inc., 82 Mass.App.Ct. 461, 470, 975
N.E.2d 458 (2012). The " practical criteria" that
" [d]ecisional case law has developed" on which
applicants should base their requests for reconsideration
include " 'changed circumstances' such as (a)
newly discovered evidence or information, or (b) a
development of relevant law; or (2) a particular and
demonstrable error in the original ruling or decision."
Id. (citations omitted). The plaintiff appears to
rely on the last criterion, an error in the court's
decision, arguing that the court failed to consider the
genuine issues of material facts concerning Walgreen's
duty of care to Ms. Rivera arising out of its voluntarily
assuming a duty by assuring her that it would contact Dr.
Schoeck, and out of its having specific knowledge of the
increased danger posed to her without medication to treat her