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Correa v. Schoeck

Superior Court of Massachusetts, Middlesex

December 22, 2016

Carmen Correa, As Administratrix for the Estate of Yarushka Rivera
v.
Andreas P. Schoeck, M.D. et al No. 135620

         Filed December 27, 2016

          MEMORANDUM OF DECISION AND ORDER

          DENNIS J. CURRAN, Associate Justice.

         Alleging 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.

         This 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.

         I. BACKGROUND

         The 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).

         After 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.

         Ms. 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.

         Walgreen's 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 authorization.

         Meanwhile, 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.

         Ms. Rivera died after suffering a third seizure on October 29, 2009.

         II. DISCUSSION

         I. Motion for Reconsideration

         Rule 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 seizure disorder.

         A. ...


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