United States District Court, D. Massachusetts
REPORT AND RECOMMENDATION
H. HENNESSY, UNITED STATES MAGISTRATE JUDGE
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.
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.
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.
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.
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.).
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.).
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).
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.).
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.
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).
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).
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 ¶ 45). ...