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Audette v. Carrillo

United States District Court, D. Massachusetts

March 16, 2017

LLOYD F. AUDETTE, Plaintiff,
v.
ADRIANA CARRILLO, et al., Defendants.

          MEMORANDUM AND ORDER ON DEFENDANTS' MOTION TO DISMISS, MOTION FOR RECONSIDERATION, AND MOTION FOR COURT ORDER REQUIRING RELEASE OF MEDICAL RECORDS

          ALLISON D. BURROUGHS U.S. DISTRICT JUDGE.

         Plaintiff Lloyd Audette (“Plaintiff”) is a state inmate incarcerated at the Massachusetts Correctional Institution in West Concord, Massachusetts (“MCI Concord”). Plaintiff's First Amended Complaint asserted claims of deliberate indifference to serious medical needs and retaliation against eleven defendants [ECF No. 16 (“Compl.”)]. Nine of these defendants previously moved to dismiss Plaintiff's claims, [ECF Nos. 42, 55, 57, 62], and this Court dismissed two of them from the case on June 27, 2016, [ECF No. 72].[1] In the June 27, 2016 Order, the Court, inter alia, denied Defendants Steven Robins and Andrea Tortolano's Motion to Dismiss with respect to claims of negligence and negligent infliction of emotional distress and Defendants Carol Higgins O'Brien and Lois Russo's Motion to Dismiss with respect to claims for prospective injunctive relief against the Defendants in their official capacities. Id.

         Presently before the Court are (1) Defendants Robins and Tortolano's Motion to Dismiss Pursuant to Rules 12(b)(1) and 12(h)(3) or, in the alternative, to refer to a medical malpractice tribunal [ECF No. 79]; (2) Defendants O'Brien and Russo's Motion for Reconsideration [ECF No. 81]; and (3) Defendant Adriana Carrillo's Motion for a Court Order Requiring Lemuel-Shattuck Hospital to Release the Plaintiff's Medical Records [ECF No. 97].

         For the reasons set forth below, (1) Robins and Tortolano's Motion to Dismiss or, in the alternative, to refer to medical malpractice tribunal is DENIED with respect to the motion to dismiss, but ALLOWED with respect to referral to a medical malpractice tribunal; (2) O'Brien and Russo's Motion for Reconsideration is DENIED; and (3) Carrillo's Motion for a Court Order Requiring Lemuel-Shattuck Hospital to Release the Plaintiff's Medical Records is ALLOWED IN PART subject to a protective order.

         I. FACTUAL BACKGROUND

         The following facts come from Plaintiff's Amended Complaint. [ECF No. 16]. Additional facts relevant to each motion will be discussed, as needed, in their respective sections. Plaintiff's claims arise out of alleged medical mistreatment and related retaliation that took place during his incarceration at the Massachusetts Correctional Institution in Shirley, Massachusetts (“MCI Shirley”) and MCI Concord. Plaintiff became a patient in the Department of Correction (“DOC”) healthcare system on or about October 13, 2009, when he began his incarceration at MCI Shirley. Compl. ¶ 15. While Plaintiff was incarcerated at MCI Shirley, his degenerative joint disease resulted in complications that required a total left knee replacement. Id. ¶ 18.

         Defendant doctors Charles DiCecca and Adriana Carrillo, with assistance from Defendant physician assistant Andrea Tortolano, performed the knee replacement surgery at Lemuel-Shattuck Hospital on December 19, 2012. Id. ¶¶ 22-23. Plaintiff alleges that the operating surgeons transected his popliteal vein, resulting in internal bleeding, persistent fever, pain-induced tachycardia, and a hematoma. Id. ¶¶ 25-28. Plaintiff further claims that following the operation, his medications were improperly administered and his knee was injured during a physical therapy session with Defendant physical therapist Robins. Id. ¶¶ 30-37. Plaintiff was discharged from the hospital on January 8, 2013, but continued to experience pain and instability in his left knee. Id. ¶¶ 38-39.

         On March 12, 2013, Plaintiff was readmitted to Lemuel-Shattuck Hospital, and Defendant DiCecca performed revision knee surgery the following day. Id. ¶ 42. Several days after the second surgery, Plaintiff informed Defendant Carrillo (a doctor who had performed the first knee surgery) and Defendant Tortolano (a physician assistant who had helped with the first knee surgery) that he had noticed renewed instability in his left knee. Id. ¶ 43. Nevertheless, Plaintiff was discharged from the hospital on March 20, 2013. Id. ¶ 45.

         Plaintiff claims that the pain, looseness, and instability in his left knee have persisted, but that Lemuel-Shattuck Hospital doctors have declined to perform a third surgery. Id. ¶¶ 48-50, 53-54. Plaintiff has filed internal grievances requesting a medical opinion from physicians unaffiliated with Lemuel-Shattuck Hospital, but claims that his requests have been denied in retaliation for filing suit. Id. ¶¶ 52-53.

         II. TORTOLANO AND ROBINS' MOTION TO DISMISS OR, IN THE ALTERNATIVE, TO REFER TO MEDICAL TRIBUNAL

         A. Procedural Background

         Plaintiff's Amended Complaint [ECF No. 16] alleges that Tortolano, as the physician assistant, and Robins, as the physical therapist, are guilty of deliberate indifference and civil conspiracy in violation of federal constitutional rights (Count I); retaliation and civil conspiracy in violation of federal constitutional rights (Count II); violation of state constitutional rights and civil conspiracy (Count III); negligence (Count V); and negligent infliction of emotional distress (Count VI). On March 1, 2016, Defendants Tortolano and Robins filed a Motion to Dismiss for Failure to State a Claim. [ECF No. 62]. The Court allowed Defendants' Motion to Dismiss with respect to the deliberate indifference, retaliation, and conspiracy charges (Counts I-III), but denied the motion with respect to claims of negligence and negligent infliction of emotional distress (Counts V-VI). [ECF No. 72].

         On July 22, 2016, Defendants Robins and Tortolano filed a Motion to Dismiss the remaining claims pursuant to Fed.R.Civ.P. 12(b)(1) and 12(h)(3) or, in the alternative, to refer the claims to the medical malpractice tribunal. [ECF No. 79]. In their motion, Defendants argue that this Court should refuse to exercise supplemental jurisdiction over the remaining state law claims against Robins and Tortolano, or that this Court should refer the case to a medical malpractice tribunal prior to exercising supplemental jurisdiction. On August 19, 2016, Plaintiff filed an Opposition. [ECF No. 88]. Plaintiff argues that this Court should exercise supplemental jurisdiction, but does not oppose Defendants' request for referral to a medical tribunal (subject to limited pre-referral discovery).

         B. Legal Standard

         A motion to dismiss for lack of subject matter jurisdiction requires that the court “construe the complaint liberally, treating all well-pleaded facts as true and indulging all reasonable inferences in favor of the plaintiff.” Aversa v. United States, 99 F.3d 1200, 1209-10 (1st Cir. 1996). When a federal claim is pending before a court, that court has supplemental jurisdiction over “all other claims that are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy.” 28 U.S.C. § 1367(a); see also Roche v. John Hancock Mut. Life Ins. Co., 81 F.3d 249, 256 (1st Cir. 1996) (“A federal court exercising jurisdiction over an asserted federal-question claim must also exercise supplemental jurisdiction over asserted state-law claims that arise from the same nucleus of operative facts.”). This remains true even when the federal claims are against a separate party. See, e.g., Irizarry-Santiago v. Essilor Indus., 929 F.Supp.2d 30, 34 (D.P.R. 2013) (exercising supplemental jurisdiction over one defendant is appropriate when the claims arose from the same “nucleus” of facts as federal claims against another defendant).

         Even after all federal claims against a defendant have been dismissed, the decision to retain or dismiss pendant state law claims is generally “left to the broad discretion of the district court.” Vera-Lozano v. Int'l Broad., 50 F.3d 67, 70 (1st Cir. 1995). In exercising its discretion, a court may consider “the interests of fairness, judicial economy, convenience, and comity.” Camelio v. Am. Fed'n, 137 F.3d 666, 672 (1st Cir. 1998).

         As an alternative to dismissing the claims against them for lack of subject matter jurisdiction, Tortolano and Robins request that this Court refer the claims to a medical malpractice tribunal.[2] In Massachusetts, “[e]very action for malpractice, error or mistake against a provider of health care shall be heard by a tribunal” tasked with deciding whether “the evidence presented if properly substantiated is sufficient to raise a legitimate question of liability appropriate for judicial inquiry or whether the plaintiff's case is merely an unfortunate medical result.” Mass. Gen. Laws ch. 231, § 60B. The definition of an “action for malpractice, error or mistake” has been interpreted broadly, such that it includes “all treatment-related claims.” Vasa v. Compass Med., P.C., 921 N.E.2d 963, 965 (Mass. 2010).

         C. ...


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