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Deluca v. Reliant Medical Group

United States District Court, D. Massachusetts

October 4, 2018

LAURA DELUCA, Plaintiff,
RELIANT MEDICAL GROUP, et al. Defendants.



         This matter comes before the Court on three separate motions to dismiss filed by all defendants in this case. (Docket ## 14, 16, 18). On March 19, 2018, UMass Memorial Medical Group and Dr. Wahid Wassaf filed a motion to dismiss. (Docket # 14). Reliant Medical Group, Dr. Thad Schilling, Dr. Asma Islan, and Attorney Jessica Viglotti filed a motion to dismiss on March 22, 2018. (Docket # 16). On March 26, 2018, Massachusetts General Hospital and Dr. William Brugge filed a motion to dismiss for lack of subject matter jurisdiction. (Docket # 18). Plaintiff Deluca filed an opposition to the motions to dismiss on April 17, 2018. (Docket # 19). On April 26, 2018, District Judge Hillman entered an order referring the case to this Court for report and recommendations. (Docket # 21). For the reasons that follow, the Court recommends that all three motions to dismiss be granted.

         I. BACKGROUND

         On March 2, 2018, Plaintiff Deluca filed a complaint alleging malpractice, negligence, negligent infliction of emotional distress, and intentional infliction of emotional distress against Defendants Reliant Medical Group; Thad Schilling, M.D.; Jessica Vigliotti, Esq.; Asma Islam, MD; UMass Memorial Medical Group; Wahid Wassaf, MD; Massachusetts General Hospital; William Brugge, MD; and John and Jane Does 1-100. (Docket # 3, ¶ 1). Deluca's claims arise from her medical care by the named Defendants.

         Deluca alleges that on or about May 10, 2017, Dr. Wassaf performed an endoscopic ultrasound on her. (Id. at ¶ 17). After the procedure, Dr. Wassaf called Deluca to inform her that he had diagnosed her with chronic pancreatitis. (Id.). On May 18, Deluca contends that she went to St. Vincent's Hospital emergency room for an attack of acute pancreatitis. (Id. at ¶ 18). She claims that she contacted Dr. Wassaf and informed him that she was at the emergency room experiencing pain and that Dr. Wassaf told her that she was constipated, despite her insistence that she was not having difficulty with bowel movements. (Id.). On May 19, Dr. Wassaf ordered an x-ray of Deluca's abdomen. (Id. at ¶ 19.) Deluca then claims that she contacted Dr. Wassaf's office on the advice of the emergency room doctor to be seen concerning her acute attack the previous day. (Id.). Deluca alleges that she was told to use a diuretic and that Dr. Wassaf would call her the next day once he had a chance to review the x-ray. (Id.). Deluca claims that she was not contacted by Dr. Wassaf the following day. (Id. at ¶ 20). She contacted UMass Memorial Medical Group and was advised to take the medicine provided to her at the emergency room on May 18 and to contact Dr. Wassaf's office the following Monday. (Id.). Deluca also called the office of a new gastroenterologist, Dr. Islam. (Id.).

         Deluca contends that on May 21, 2017, she awoke to severe pain and returned to the emergency room at St. Vincent's Hospital where she was denied admittance because she had a “chronic condition” and that her care should be provided by her gastrointestinal doctor rather than the emergency room. (Id. at ¶ 21). Deluca states that she called Dr. Wassaf's office numerous times on May 22 and that none of her calls were returned until her insurance carrier called the office. (Id. at ¶ 22). Over the phone on the evening of May 22, Dr. Wassaf told Deluca that she was not constipated and referred her to “MRCP” for a scan over a week later. (Id.).

         Deluca scheduled an appointment with Dr. Islam on May 23, 2017 and was seen by a nurse practitioner in that office on May 24. (Id. at ¶ 23). According to Deluca, the nurse practitioner (“NP”) prescribed 20 doses of Oxycodone to Deluca. (Id.). On May 25, Deluca obtained a patient advocate through her health insurance carrier. (Id. at ¶ 24). Deluca claims that she requested additional Oxycodone from Dr. Islam's NP on June 1, 2017 and her request was denied. (Id.).

         Deluca met with a new gastroenterologist on June 6, 2017, Dr. Brugge at Massachusetts General Hospital. (Id. at ¶ 26). Deluca contends that he did not take her reports of pain seriously, that he was distracted throughout their meeting and repeatedly took phone calls, and that he refused to prescribe opioid pain medication, instead advising her to comply with a low-fat diet. (Id.) Dr. Brugge told Deluca that he would consult with Dr. Islam. (Id.).

         Deluca reports that she met with Dr. Kim, yet another gastroenterologist, on June 11, 2017 at UMass Memorial Medical Group. (Id. at ¶ 27). Dr. Kim prescribed a different medication, but Plaintiff alleges that there was no improvement after one week. (Id.). Deluca states that Dr. Kim also prescribed an antibiotic which provided Deluca with relief from symptoms that she had been reporting for two years. (Id.). Dr. Kim refused to prescribe pain medication, instead directing Deluca to make an appointment at a pain clinic. (Id.). Deluca claims that she called pain clinics all over the state during the following weeks and was advised that they are no longer taking patients in need of opioid medication. (Id. at ¶ 28).

         On July 25, 2017, Deluca met with Dr. Islam in person for the first time. (Id. at ¶ 29). At the meeting, Deluca claims that Dr. Islam told her that the office did not receive records sent by Dr. Wassaf. (Id.). Deluca alleges that she had confirmation that the records were faxed to Dr. Wassaf's office on June 11, 2017. (Id.).

         On September 5, 2017, Deluca contends that her health insurance carrier directed her to a pain clinic at Beth Israel where Deluca saw Dr. Freedman, another gastroenterologist, who ordered a new endoscopic ultrasound with secretions. (Id. at ¶ 31). According to Deluca, the endoscopic ultrasound with secretions was completed on September 20. (Id. at ¶ 32). Deluca alleges that the bicarbonate reading was 69 where it had previously been 78. (Id.). She claims that the total loss of organ function was eleven percent since May 18, 2017. (Id.). Accordingly, Deluca states that Dr. Freedman changed her medication from creon to viscose and prescribed one month of Oxycodone for breakthrough pain in addition to Gabapentin for thrice daily use, advising that Deluca's primary care physician should provide pain medication. (Id.).

         As of September 20, 2017, Deluca contends that Dr. Islam's office continued to report that it had not received records from Dr. Wassaf's office and additionally reported that it had not received recommendations from Dr. Freedman's office. (Id. at ¶¶ 33, 34). Deluca contends that Dr. Islam would not prescribe the recommended medication until Dr. Freedman's staff called Dr. Islam's office. (Id. at ¶ 34). Deluca asserts that her symptoms were not taken seriously at the Beth Israel Pain Clinic and that she had difficulty in getting Dr. Islam's office to refer her to the Baystate Pain Center. (Id. at ¶¶ 35-40). On November 7, 2017, Deluca alleges that Dr. Islam refused to provide care for Deluca despite her reports of severe pain and great difficulty eating. (Id. at ¶ 41). Deluca claims that she was rejected from the Baystate Pain Center on November 9, 2017 because she lived outside of the service area. (Id. at ¶ 42).

         On November 13, 2017, Deluca had an appointment at the Peabody Pain Clinic. (Id. at ¶ 43). Deluca claims that she was advised that they would not provide her with opioid medications. (Id.). Deluca alleges that she saw a note from Dr. Brugge at Massachusetts General Hospital stating that Deluca had developed chronic pancreatitis as a result of long-term narcotic use and advised that “no narcotics be given to patient.” (Id.). That same day, Deluca states that she went to Dr. Islam's office and requested all of her patient records with all test results and recommendations regarding her care. (Id. at ¶ 44).

         Deluca alleges that she spoke with Attorney Vigliotti, Senior Manager for Risk Management for Defendant Reliant Medical Group on November 13, 2017 concerning the note by Dr. Brugge and what Deluca considered to be deficient care on the part of Dr. Islam. (Id. at ΒΆ 45). ...

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