Lopes v. Riendeau et al

Filing 157

Judge Nathaniel M. Gorton: ORDER entered denying 152 Motion to Appoint Counsel. Lopes is granted 35 days from the date of this Memorandum and Order to file his response to the motions for summary judgment. The Clerk shall mail to Lopes a copy of this Memorandum and Order along with copies of defendants statements of material facts: Docket Nos. 139, 149 and 155. Reply papers, if any, shall be filed within 7 days of receipt of any response by Lopes. Failure of Plaintiff to file a response will result in the Court considering the motions on the record before it. (Attachments: # 1 Appendix Berg SOF 155, # 2 Appendix Nickl Riendeau SOF 149, # 3 Appendix MPCH SOF 139) (PSSA, 4)

Case 1:14-cv-10679-NMG Document 155 Filed 07/27/16 Page 1 of 7

UNITED STATES DISTRICT COURT FOR
THE DISTRICT OF MASSACHUSETTS
________________________
DANA E. LOPES,
)
Plaintiff,
)
)
v.
)
CIVIL ACTION NO. 1:14-cv-10679-NMG
)
MPCH, et. al.,
)
Defendants.
)
DEFENDANT BARBARA BERG, LPN’S
CONCISE STATEMENT OF MATERIAL FACTS
Pursuant to Local Rule 56.1, Defendant Barbara Berg (“Defendant”) offers the following
statement of material facts in support of her Motion for Summary Judgment:
1.

Pursuant to Fed. R. Civ. P. 10(c), Defendant Berg hereby adopts and incorporates by
reference Defendants, Dyana Nickl and Geraldine Riendeau, Statement of Undisputed
Facts in Support of their Motion for Summary Judgment (Doc. 100) in its entirety, as if
each numbered paragraph was restated here.

2.

Pursuant to Fed. R. Civ. P. 10(c), Defendant Berg hereby adopts and incorporates by
reference Defendants Paul Caratazzola, Patricia Davenport-Mello, and Massachusetts
Partnership for Correctional Healthcare’s Concise Statement of Material Facts (Doc.
139) in its entirety, as if each numbered paragraph was restated here.

3.

Pursuant to Fed. R. Civ. P. 10(c), Defendant Berg hereby adopts and incorporates by
reference Defendants, Dyana Nickl and Geraldine Riendeau, Statement of Undisputed
Facts in Support of their Renewed Motion for Summary Judgment (Doc. 149) in its
entirety, as if each numbered paragraph was restated here.
Plaintiff

4.

Plaintiff Dana Lopes (“Plaintiff”) is inmate presently incarcerated with the
Massachusetts Department of Correction (“DOC”) at MCI-Shirley. (Doc. 139, ¶1). At
the time of the filing of his Complaint, Plaintiff was incarcerated by the DOC at Old
Colony Correctional Center (“OCCC”) in Bridgewater, MA. (Doc. 139, ¶1).

5.

Plaintiff has a history of Hepatitis C, dating back more than 35 years, and also suffers
from cirrhosis of the liver and end-stage liver disease. (Doc. 100, ¶13; Doc. 120, pgs.2425).

Case 1:14-cv-10679-NMG Document 155 Filed 07/27/16 Page 2 of 7

UMCH Co-Defendants
6.

Defendant University of Massachusetts Correctional Health (“UMCH”) provided medical
services to DOC inmates, incarcerated at OCCC, from 2003 to June 30, 2013. (Exhibit
A, Affidavit of Barbara Berg, LPN, ¶¶4-9; Doc. 27-1, ¶4). In 2003, the DOC had
contracted the University of Massachusetts Medical School (“UMMS”), a publicly
owned university, to become the new medical provider at DOC operated facilities. (Exh.
A, ¶4; Doc. 27-1, ¶¶2-9). UMMS provided medical services to DOC inmates through
UMCH, which was a department within the UMMS. (Exh. A, ¶¶4-5; Doc. 27-1, ¶¶3-4).

7.

Defendant Geraldine Riendeau, RN was formerly the Health Service Administrator
(“HSA”) at OCCC, and worked for UMCH at all times relevant to the Complaint. (Doc.
149, ¶2). Defendant Riendeau was a public employee, subject to the direction and
control of UMCH. (See Doc. 149, ¶¶13-20).

8.

Defendant Dyana Nickl was UMCH’s Senior Director of Operations, and served as
UMCH’s Grievance and Appeals Coordinator at all relevant times to Plaintiff’s
Complaint. (Doc. 149, ¶¶3,21). Defendant Nickl was a public employee, subject to the
direction and control of UMCH. (See Doc. 149, ¶¶21-25).
MPCH Co-Defendants

9.

Defendant Massachusetts Partnership for Correctional Healthcare, LLC (“MPCH”) is a
privately owned company, affiliated with MHM Services, Inc. (“MHM”), which has been
the contracted medical provider for the DOC since July 1, 2013. (Exh. A, ¶¶7-9; Doc.
139, ¶¶2-6).

10.

On July 1, 2013, Defendant Paul Caratazzola, LICSW was hired by MPCH to become the
HSA at OCCC, and worked for MPCH/MHM at all times relevant to the Complaint.
(Doc. 139, ¶¶5-7, 11). Defendant Caratazzola was a private employee, subject to the
direction and control of MPCH. (Doc. 139, ¶¶5-7, 11).

11.

On July 1, 2013, Defendant Patricia Davenport-Mello, RN was hired by MPCH to
become the Director of Nursing at OCCC, and worked for MPCH/MHM at all times
relevant to the Complaint. (Doc. 139, ¶¶9-11).
Defendant Barbara Berg, LPN

12.

In 2003, Defendant Barbara Berg, LPN was hired by UMCH as a LPN at OCCC. (Exh.
A, ¶6).

13.

While employed by UMCH, Defendant Berg reported to and was directly supervised by
UMCH’s HSA and Director of Nursing. (Exh. A, ¶¶12, 16). Additionally, UMCH
management staff set her hours, determined what unit she worked on during any given
shift, and determined which patients she would treat. (Exh. A, ¶13).

2

Case 1:14-cv-10679-NMG Document 155 Filed 07/27/16 Page 3 of 7

14.

During her employment with UMCH, Defendant Berg’s salary was paid by UMMS and
was not dependent on the number of inmates she treated. (Exh. A, ¶13). As an employee
of UMCH, a publicly owned entity, Defendant Berg was able to participate in benefits
programs only offered to Commonwealth of Massachusetts’ employees, such as the
state’s retirement program. (Exh. A, ¶¶4, 14).

15.

As an employee of UMCH, Defendant Berg was bound by the policies and procedures
UMCH had developed concerning the care provided to patients at OCCC. (Exh. A, ¶15).
During her employment with UMCH, the care and treatment Defendant Berg provided to
the Plaintiff was done so in accordance with these policies and procedures. (Exh. A, ¶15).

16.

On July 1, 2013, Defendant Berg became an employee of MPCH when MPCH became
the contracted medical provider at OCCC. (Exh. A, ¶¶7, 9; Doc. 139, ¶12). At this time,
Defendant Berg continued her job as a LPN at OCCC. (Exh. A, ¶¶7, 9).

17.

Since becoming an employee of MPCH on July 1, 2013, Defendant Berg’s salary has
been paid by MHM, and is still not dependent upon the number of inmates she treats.
(Exh. A, ¶¶9, 17). As MHM is privately owned, Defendant Berg is no longer able to
participate in the Massachusetts state retirement program nor any other benefit programs
only offered to state employees. (Exh. A, ¶¶8,17).

18.

During her employment with MPCH as a LPN at OCCC, Defendant Berg was directly
supervised by MPCH’s Director of Nursing at OCCC. (Exh. A, ¶18). Additionally,
MPCH management staff set her hours, determined what unit she would work on during
any given shift, and determined which patients she would treat. (Exh. A, ¶18).

19.

As an employee of MPCH, Defendant Berg was bound by the policies and procedures
MPCH had developed concerning the care provided to patients at OCCC. (Exh. A, ¶19).
During her employment with MPCH, the care and treatment Defendant Berg provided to
the Plaintiff was done so in accordance with these policies and procedures. (Exh. A, ¶19).

20.

During her employment as an LPN at OCCC, with both UMCH and MPCH, Defendant
Berg worked as a medication nurse. (Exh. A, ¶11). In this role, she was responsible for
administering medication to multiple patients, takin off provider orders, conducting KOP
audits, proofreading Medication Administration Records, maintaining medications or all
patients, providing patient treatments, and conducting other various duties as assigned.
(Exh. A, ¶11). Defendant Berg was not responsible for prescribing medications,
diagnosing illnesses, or ordering specific medical treatment. (Exh. A, ¶11).

21.

Defendant Berg has never been employed by the DOC, nor has she ever been supervised
by or collected a salary from the DOC. (Exh. A, ¶21).

3

Case 1:14-cv-10679-NMG Document 155 Filed 07/27/16 Page 4 of 7

Medical Treatment Provided by UMCH
22.

From November 2003 to May 2004, UMCH medical staff treated Plaintiff’s Hepatitis C
with “Peg-Intron” and “Ribavirin.” (Doc. 100, ¶33; Doc. 120, pg.25). However, this drug
regiment ended because Plaintiff developed anemia and vision changes with cotton woolspots seen on his eye exam. (Doc. 100, ¶33; Doc. 120, pg.25). Plaintiff was further
unable to restart treatment with these medications because of issues with ascites. (Doc.
100, ¶33).

23.

In August 2005 and April 2006, Plaintiff was treated at Tufts-New England Medical
Center (“Tufts”). (Doc. 120, pg.25). The Tufts physician noted that Plaintiff was not a
candidate for a liver transplant. (Doc. 120, pgs.25-26). Specifically, the physician noted
that Plaintiff’s “risk of dying from the liver transplant would be higher than the risk of
dying from his liver disease.” (Doc. 120, pg.26).

24.

In 2006, following Plaintiff’s evaluation at Tufts, Philip Tavares, MD (“Dr. Tavares”) of
UMCH examined Plaintiff and assessed his end-stage liver disease as stable. (Doc. 120,
pg.26). Dr. Tavares’ adopted Tufts findings that Plaintiff should be put on a weight loss
program and discontinued from narcotics, so that the risks associated with a liver
transplant could potentially be reduced. (Doc. 120, pg.26).

25.

In another 2006 visit, Dr. Tavares planned to check the date of Plaintiff’s last liver
ultrasound and order another ultrasound or CT scan “as indicated.” (Doc. 120, pg.26).

26.

Throughout 2006, Plaintiff was seen several additional times by UMCH in the prison
infirmary, and his condition was described as stable. (Doc. 120, pg.26).

27.

From 2008 to 2012, UMCH staff continuously monitored Plaintiff’s liver disease with
CT scans and outside medical consults. (Doc. 100, ¶¶33-50; Doc. 120, pgs. 28-29).

28.

In 2011, the Food and Drug Administration (“FDA”) approved two new medications to
treat Hepatitis C, namely, “Boceprevir” and “Telaprevir.” (Doc. 120, pg.27). However,
both of these medications required that they be taken in combination with peginterferon
alfa ribavirin. (Doc. 120, pgs.27-28).

29.

In March 2012, the Plaintiff was evaluated by Richard J. Rohrer, M.D. (“Dr. Rohrer) at
Tufts, who again concluded that Plaintiff could not tolerate interferon therapy. (Doc. 120,
pg.28). Dr. Rohrer further stated that Plaintiff did not qualify for a liver transplant
because the lesion on his liver was too small, but recommended that UMCH continue to
observe it. (Doc. 120, pg.29).

30.

On April 24, 2012, Plaintiff was evaluated by Angela S. Dantonio, N.P. (“Dantonio”) at
UMass Memorial Medical Center in Worcester, MA (Doc. 120, pg.29). Dantonio
concluded that a four-phase CT scan was needed to determine if Plaintiff could
potentially be a liver transplant candidate. (Doc. 120, pg.29).
4

Case 1:14-cv-10679-NMG Document 155 Filed 07/27/16 Page 5 of 7

31.

Per Dantonio’s recommendation, UMCH staff performed a four-phase CT scan of
Plaintiff’s pelvis and abdomen and returned him to UMass Memorial Medical Center to
be re-evaluated by multiple-providers for his chronic hepatitis C, cirrhosis and liver mass
on May 17, 2012 (Doc. 120, pg.30).

32.

On May 17, 2012, three radiologists at UMass Memorial Medical Center reviewed
Plaintiff’s four-phase CT scan and decided that an MRI needed to be obtained before
considering a liver biopsy. (Doc. 120, pg.31). In June 2012, Plaintiff agreed to undergo
this MRI. (Doc. 120, pg.31).

33.

In August 2012, Plaintiff had the MRI. (Doc. 120, pg.32). In November 2012, he
underwent a fine needle aspiration biopsy and a radio frequency ablation of the lesion on
his liver. (Doc. 120, pg.32). In December 2012, Plaintiff had a three-phase CT scan of
his abdomen and pelvis. (Doc. 120, pg.32).

34.

On January 31, 2013, Plaintiff was seen again at UMass Memorial Medical Center, where
the multidisciplinary team decided to continue surveillance of Plaintiff’s condition with
imaging three months after the December 2012 CT scan. (Doc. 120, pgs.32-33).

35.

On or about February 2013, Plaintiff was found to be non-compliant with his Keep on
Person (“KOP”) medication, and UMCH staff began requiring Plaintiff to retrieve his
daily medication from the Medication line to prevent overdosing. (Doc. 101-5, pgs.2-11).

36.

In March 2013, Plaintiff was admitted to Lemuel Shattuck Hospital (“LSH”) for a “selfinduced low nutritional intake.” (Doc. 120, pg.33). Medical staff at LSH recommended
continued management on an outpatient basis of Plaintiff’s liver disease and continued
dosing of diuretic medication. (Doc. 120, pg.34).

37.

In July 2013, MPCH began providing medical services to OCCC inmates, including the
Plaintiff, which were previously provided by UMCH. (Doc. 120, pg.34).
Medical Treatment Provided by MPCH

38.

When MPCH began providing care to Plaintiff, in July 2013, Mr. Lopes was suffering
from Chronic Hepatitis C with cirrhosis. (Doc. 139, ¶13).

39.

In an April 14, 2014 letter, the Director of Clinical Services of DOC Health Services
Division advised the Plaintiff that MPCH did not “have an alternative treatment plan that
does not include the Peg Intron at this time” and MPCH was “working on obtaining
newer treatments.” (Doc. 120, pg.34). The letter also explained to the Plaintiff that his
prior development of “cotton wool spots” caused by the “Peg Intron treatment” could
result in blindness if such treatment was given per Plaintiff’s request. (Doc. 120, pg.34).

40.

Plaintiff has a specific viral mutation, which predicts resistance to protease inhibitors
(“PI”) Boceprevir and Telaprevir. (Doc. 139, ¶14). On July 23, 2014, Mr. Lopes
underwent testing at Boston Medical Center, where an attending physician in the
5

Case 1:14-cv-10679-NMG Document 155 Filed 07/27/16 Page 6 of 7

Gastroenterology Department repeated the ongoing recommendation that Mr. Lopes
avoid PIs in regards to treatment of his Hepatitis C Virus (“HCV”). (Doc. 139, ¶14).
41.

Since MPCH began caring for the Plaintiff on July 1, 2013, Plaintiff’s condition has been
monitored with multiple lab tests, diagnostic procedures, and chronic disease
consultations with medical professionals outside of MPCH, while MPCH medical staff
waited for the U.S. Food and Drug Administration (“FDA”) to approve a new form of
treatment. (Doc. 139, ¶15).

42.

An August 20, 2014 letter to the Plaintiff from the Assistant Deputy Commissioner of the
DOC Health Services Division reiterated to the Plaintiff that “Boceprevir and Telaprevir
medication have to be given with the Peg Interferon” and Plaintiff could not have them
because of his prior negative side effects to Peg Interferon. (Doc. 120, pg.34).

43.

In October of 2014, the FDA approved the use of Harvoni to treat HCV. (Doc. 139, ¶16).
Harvoni provided the first FDA approved interferon-free and ribavirin-free regimen to
treat Hepatitis C. (Doc. 120, pg.35).

44.

On January 21, 2015, Plaintiff was seen at the Lemuel Shattuck Hospital’s (“LSH”) GI
Clinic, for new treatment options, where it was recommended that Plaintiff be started on
a twelve week trial of Harvoni. (Doc. 139, ¶17).

45.

Per the recommendation of the LSH GI Clinic, MPCH medical staff approved Plaintiff to
begin treatment with Harvoni. (Doc. 139, ¶18). As a result, Plaintiff was placed on a
twelve week trial of Harvoni, which began on March 2, 2015 and ended on May 24,
2015. (Doc. 139, ¶18).

46.

The Harvoni treatment was successful, as subsequent lab tests confirmed that the HCV
was no longer present in Plaintiff’s blood. (Doc. 139, ¶19).

47.

Since Plaintiff’s successful Harvoni treatment, MPCH staff have continued to monitor
Plaintiff for any signs of the HCV returning. (Doc. 139, ¶20). MPCH has also continued
to provide the Plaintiff with care for additional medical conditions unrelated to the HCV.
(Doc. 139, ¶20).

48.

On May 4, 2016, Plaintiff informed MPCH that he was refusing to undergo any further
gastrointestinal evaluations and follow-up appointments for liver disease. (Doc. 139,
¶21). On this same date, Plaintiff signed a Release of Responsibility form acknowledging
that he understood the risks associated with refusing such treatment. (Doc. 139, ¶21).

49.

Plaintiff’s present Primary Care Clinician, Maria Angeles, MD, will continue to offer and
provide Plaintiff with appropriate medical treatment and monitoring for liver disease, if
and when Plaintiff permits MPCH medical staff to do so. (Doc. 139, ¶22).

6

Case 1:14-cv-10679-NMG Document 155 Filed 07/27/16 Page 7 of 7

Grievances
50.

While UMCH was the contracted medical provider at OCCC, inmates were required to
follow UMCH’s grievance process if they had a complaint about the medical care they
were receiving. (Doc. 101, pg.14; Doc. 101-5, pgs.2-15). Plaintiff exhausted his
administrative remedies in regards to his complaints of harassment by Defendant
Reiendeau and his complaint about not being permitted to keep his skin cream in his cell.
(Doc. 101, pg.14; Doc. 101-5, pgs.2-15). However, Plaintiff did not exhaust his
administrative remedies as to his request for a biopsy, liver transplant, and alternative
Hepatitis C treatment. (Doc. 101, pg.14; Doc. 101-5, pgs.2-15).

51.

Since MPCH became the contracted medical provider at OCCC in July 2013, inmates
have been required to follow MPCH’s grievance process if they have a complaint about
the medical care they are receiving. (Doc. 139, ¶23). Prior to filing this instant lawsuit,
the Plaintiff failed to exhaust his administrative remedies as to his request for a biopsy,
liver transplant, and request for alternative Hepatitis C treatment. (Doc. 67, pgs.1-2; Doc.
139, ¶¶24-27).
Respectfully submitted,
Defendant Barbara Berg, LPN,
By her attorney,

Dated: July 27, 2016

/s/ George J. Puddister IV__________
George J. Puddister IV, BBO #689162
KOUFMAN & FREDERICK, LLP
145 Tremont Street, 4th Floor
Boston, MA 02111
[phone]
[e-mail]

CERTIFICATE OF SERVICE
I, George J. Puddister IV, certify that on this 27th day of July, 2016, a copy of the above
pleading was filed with the ECF System and sent electronically to the registered participants as
identified on the Notice of Electronic Filing, with paper copies being sent to those indicated as
non-registered participants.
/s/ George J. Puddister IV
George J. Puddister IV
I:\Clients\MHM\Lopes, Dana (Pro Se)\Summary Judgment\Berg's Concise Statement of Material Facts.docx

7

Case 1:14-cv-10679-NMG Document 155-1 Filed 07/27/16 Page 1 of 3

Case 1:14-cv-10679-NMG Document 155-1 Filed 07/27/16 Page 2 of 3

Case 1:14-cv-10679-NMG Document 155-1 Filed 07/27/16 Page 3 of 3