United States District Court, D. Massachusetts
ANTHONY C. MARINO, Plaintiff,
THOMAS A. TURCO, III, et al., Defendants.
MEMORANDUM & ORDER
Talwani United States District Judge.
Anthony C. Marino brought an action under 42 U.S.C. §
1983 and M. G. L. c. 231, § 60B, against the
Massachusetts Partnership for Correctional Healthcare, LLC
(“MPCH”) and four individual Defendants. Before
the court is Defendants' Motion for Referral to
Medical Malpractice Tribunal [#48]. Because this court
finds referral of Plaintiff's state law claim merited as
to all Defendants pursuant to M. G. L. c. 231, § 60B,
the Motion for Referral to Medical Malpractice
Tribunal [#48] is ALLOWED.
complaint seeks damages for ongoing health problems that
Plaintiff alleges are due to the failure of MPCH and its
employees to provide him with appropriate and timely medical
care and treatment. Am. Compl. ¶¶ 45-52 [#21].
Marino alleges that he began experiencing back and neck pain
in early 2015 and underwent an MRI and two cervical epidural
injections that year. Id. ¶ 12. He states that
shortly before a planned surgical consultation, Marino
violated the terms of his parole and was incarcerated.
Id. ¶ 17. Marino remained in custody between
December 2015 and March 2018. Id. ¶¶
alleges that MPCH is a corporate entity that contracted with
the Department of Corrections (“DOC”) to provide
medical care to DOC prisoners, that Defendant Thomas
Groblewski, D.O., was MPCH's Statewide Medical Director,
that Defendant Rebecca Lubelczyk, M.D., was employed by MPCH
as a physician, that Defendant Elizabeth Louder was employed
by MPCH as Health Services Administrator at MCI Shirley, and
Defendant Vanessa Rattigan were employed by MPCH as Health
Services Administrator at Pondville Correctional Center.
Id. ¶¶ 5-9.
contends that in April 2016, he completed a medical intake at
MCI Cedar Junction, explaining that he had previously
received treatment for degenerative cervical disc disease and
was currently experiencing serious pain. Id. ¶
18. He alleges that in July 2016, he submitted a form
indicating that he was in severe pain, the medication
provided by DOC was not relieving the pain, and he believed
his herniated disc had ruptured. Id. ¶ 21.
Marino asserts that the same month, he saw a practical nurse,
who noted he had nerve damage and was unable to move his
neck, and a physician's assistant, who noted that he was
in “severe pain” because of his herniated disc
and was suffering weakness in his right arm and grip.
Id. ¶¶ 21-22.
states that in September 2016, he was referred to
neurosurgery for evaluation, but this referral was not
approved by Dr. Lubelczyk. Id. ¶ 24. Marino
alleges that Dr. Lubelczyk instead recommended physical
therapy and medication and stated she would request an MRI.
Id. Marino asserts that he filed a grievance in
December 2016, regarding the delay in treatment and that
Health Services Administrator Louder denied the grievance,
recommending physical therapy and an MRI instead of surgery.
Id. ¶ 27. Marino alleges that after seeing a
physical therapist who recommended a neurosurgical
evaluation, he underwent a cervical spine MRI in March 2017,
and had a neurosurgical consult in April. Id.
¶¶ 31-32, 34. He asserts that he was diagnosed with
cervical myeloradiculopathy and was told that surgery was
warranted because more conservative measures had failed.
Id. ¶ 34. He states further that surgery was
scheduled for June but was canceled. Id. ¶ 35.
Marino alleges that he submitted a grievance regarding the
delay in his treatment in October 2017. Id. ¶
40. He states that Health Service Administrator Rattigan
responded to his grievance, apologizing for the delay and
stating that a clinic appointment would be scheduled
“as soon as possible.” Id. Marino
alleges that one month later, he submitted another grievance
complaining that it had been more than a month since an
“urgent referral” had been made. Id.
¶ 41. He asserts further that Rattigan did not respond
until November 30, 2017, when she informed him that an
appointment had been scheduled for further evaluation.
Id. ¶ 41. Marino states that he underwent a
surgical discectomy at Boston Medical Center a month later in
December 2017. Id. ¶ 44.
brought suit, stating that he currently suffers from acute
and chronic pain, tremors and weakness in both hands,
cramping in his left hand, right calf and foot, and severe
emotional distress, which were caused or exacerbated by
Defendants' failure to provide adequate medical care.
Id. ¶ 45. Plaintiff's Amended
Complaint seeks relief under 42 U.S.C. § 1983 for
violation of his civil rights, and under M.G.L. c. 231,
§ 60B, for medical malpractice. Id.
¶¶ 46-52 [#21].
moved to dismiss Marino's complaint. Mot. to Dismiss
[#35]. The court denied the motion, rejecting, inter
alia, Defendants' challenge to Marino's medical
malpractice claim. Order 14-17 [#43].
subsequently filed the instant motion seeking referral of the
claim to a medical malpractice tribunal. In connection with
the motion, Defendants have submitted evidence that Louder is
a Licensed Independent Social Worker and that Rattigan is a
Registered Nurse, and that both of their licenses are current
in Massachusetts. Ex. 1 - Licensee Detail, Elizabeth Louder
(Defs.' Reply) [#55-1]; Ex. 2 - Licensee Information,
Vanessa Ratigan (Defs.' Reply) [#55-2].
party raises a Massachusetts state law claim alleging medical
malpractice, a court generally must refer the claim to a
medical malpractice tribunal to determine whether Plaintiff
has submitted evidence sufficient to raise a legitimate
question of liability appropriate for judicial inquiry. M. G.
L. c. 231, § 60B; Feinstein v. Mass. General
Hosp., 643 F.2d 880 (1st Cir. 1981). “The purpose
of the tribunal is to distinguish between unfortunate medical
results and judicially cognizable claims of medical
malpractice.” Joseph v. Sweet, 125 F.Supp.2d
573, 575 (D. Mass. 2000).
treatment related claim to be referable, it must be brought
against “a provider of health care, ” which the
statute defines as “a person, corporation, facility, or
institution licensed by the commonwealth to provide health
care or professional services, ” and which encompasses
a list of professions including physicians, social workers,
and registered nurses. M. G. L. c. 231, § 60B;
Salpoglou v. Shlomo Widder, M.D., P.A., 904 F.Supp.
34, 35 (D. Mass. 1995) (finding referral unwarranted because
physician was not currently licensed by the state). In
addition, the subject matter of the claim must
“implicate the professional judgment or competence of a
provider.” Vasa v. Compass Med. P.C., 921
N.E.2d 963, 966 (Mass. 2010). Referral is appropriate only
where there is an “issue of medical malpractice, error,
or mistake.” M. G. L. c. 231, § 60B. See also
Lenninger v. Franklin Med. Ctr., 404 Mass. 245,
247-48 (1989) (finding referral unwarranted because
plaintiff's claimed harm arose from failure to comply
with civil commitment statute and was unrelated to medical
judgment or treatment).
concedes a malpractice tribunal must be convened for the
medical malpractice claim brought against Dr. Groblewski and
Dr. Lubelcyzk, Pl.'s Opp. To Defs.' Mot. for
Referral 2 [#52], and does not oppose referral of the
medical malpractice claim against MPCH. Plaintiff contends,
however, that referral is not warranted for the medical
malpractice claim against Defendants Louder and Ratigan
because: 1) Plaintiff did not allege in his complaint that