Hepatitis C Litigation

Overview

Fowler, et al. v. Turco, et al., U.S. District Court, Docket No. 1:15-cv-12298-NMG is a class-action lawsuit brought by our office and the Massachusetts Chapter of the National Lawyers Guild.  Below please find a copy of the Joint Motion to Approve Settlement, with exhibits. The exhibits include (1) a copy of the Settlement Agreement between the Department of Correction and Plaintiffs’ counsel; (2) the revised Clinical Guidance document, which details the guidelines that the DOC’s medical contractor shall follow for the evaluation and management of Hepatitis C; and (3) the proposed notice to class members, which was approved and sent out to all DOC prisoners with Hepatitis C.

Pursuant to the Settlement Agreement, the DOC (through its medical contractor, MPCH) should assign Hepatitis C patients to a Priority Level and schedule Priority Level 1 and 2 patients for Hepatitis C treatment over the coming months.  If you have any specific questions or concerns about your treatment under this new protocol, and you have been unable to get those questions answered by medical providers, please contact our office. Whether you write or call, please provide as much information as you have about your Hepatitis C, including any recent APRI score or other staging tests (FIB-4, Fibrosure, imaging, biopsy).

Hep C Settlement

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Filing a Medical Grievance and Protecting Your Right to Sue

If you are having problems receiving medical care or feel that you are not receiving proper care you can file a medical grievance.  Please pay special attention to the timelines below. If you are in a county jail or house of correction, this procedure does not apply to you.  You should follow the procedure for medical grievances in place at your facility if there is one available.  Please be aware that in order to preserve your right to sue about inadequate medical care, medical malpractice, or any other problem specifically related to medical care you must file a medical grievance and follow through with all levels of the grievance appeals process.

Wellpath/CCS Medical Grievance Procedure

Medical Grievance Form (Wellpath)

The Wellpath/CCS grievance procedure, has 3 levels:

Level 1. Staff Access (Happy Hour) (or writing an informal letter to the Health Services Administrator (HSA), if you cannot get to staff access because you are in segregation or have a disability, or if no one from medical staff attends staff access) 

Level 2. Formal grievances to the Health Services Administrator (HSA) at your institution using the sick call box

Level 3. Appeals of Formal Grievances to Wellpath Grievance and Appeal Coordinator

Informal Process/Staff Access/Happy Hour

You must bring your medical concerns to Staff Access and speak with HSA or the designee.  You may be asked to return to the next Staff Access in order to give the HSA time to respond to the complaint.  This step is required before filing a formal written grievance.

Formal Grievance

You must file a medical grievance within 10 working days (weekdays, not including holidays) of

• the incident or situation you are complaining of
• you “becoming aware of the incident or situation,” or 
• you receive a response to an informal complaint,

whichever is later is the date you should use to start the 10 working days. Whenever a grievance is returned for “follow-up,” you will have an additional 3 business days from the date of receipt to resubmit the grievance with the additional information requested. If the grievance is not resubmitted, it will be interpreted that the grievance has been withdrawn.

If you think you may have missed the deadline, file the grievance anyway, as soon as possible.  The HSA may waive the deadline for filing a grievance, and even if the HSA does not do so, you may have arguments that you can raise in your grievance appeal about why the grievance is timely.

To file, fill out the Wellpath Inmate Grievance and Appeal Form and address it to the HAS, DON, or institution protocol. In special management units, forms may be handed to rounding healthcare staff.  You should keep a copy for your records. If you cannot obtain a photocopy, fill out a second grievance form at the same time, making it identical to the one that you submit. Keep this second original form for your records.

Your grievance must be in the format required by the policy or it will be returned to you.  You should receive a response within 10 working days. If additional time is needed in order to generate a more complete response, you should receive notification of such.

Appeal to Wellpath/CCS Grievance and Appeals Coordinator

Appeals must be submitted within 10 business days from the grievance decision receipt, Wellpath has 30 business days to respond to your appeal. If additional time is needed in order to generate a more complete response, you should receive notification of such. Should the appeal be returned, the patient will have 3 business days from the date of the receipt to resubmit the appeal with the additional information requested. In order to appeal the decision of Wellpath (or the lack of a response), you must send your appeal directly to:

Wellpath
16 Chestnut Street
Suite 250
Foxborough, MA 02035
Attn: Grievance and Appeal Coordinator

Laws that Require incarcerated individuals to File Grievances

Both state and federal law require that prisoners suing about any incident or thing that happens in prison must first “exhaust administrative remedies” by using available grievance and other remedies before filing suit.  Prison Litigation Reform Act, 42 U.S.C. §1997e, and M.G.L. c. 127, §38F. If you file suit regarding non-emergency medical care without filing a medical grievance first, the court will likely dismiss the suit.

Emergency Medical Care

You should alert DOC staff immediately if you are having a medical emergency. Do not wait for the grievance procedure to receive emergency medical attention. You are, of course, free to file a grievance after the emergency has passed. 

What Remedy Should You Request?

In cases where you want treatment, testing, or something else to happen (e.g., specific medication, diagnosis of a medical condition, an x-ray or MRI) ask for that thing to happen. In cases where you have been permanently harmed or damaged and you would like to seek money as compensation request “monetary damages.”  You do not have to request a specific amount of money. Although the grievance authorities will state that they do not award monetary damages through the grievance process, you must still file a grievance and all available appeals before you can file a lawsuit.

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The Right to Refuse Medical Treatment

In Massachusetts, as in most states, a free person generally has the right to refuse medical treatment even when it is necessary to save his or her life.   Shine v. Vega, 429 Mass. 456 (1999).   See also, Cruzan v. Director, Missouri Department of Health, 497 U.S. 261 (1990) (“a competent person has a constitutionally protected liberty interest in refusing unwanted medical treatment”).   As a general rule, prison staff will respect your right to refuse medication or treatment that the doctor has recommended. If you choose to reject the recommended treatment, medical staff should meet with you to explain the risks and benefits, but in most situations, the final decision is up to you.  

In rare instances, such as when prison officials fear that a prolonged hunger strike or refusal of treatment has created a substantial risk of death or serious injury, the DOC may file an emergency petition in the Superior Court seeking a judge’s approval for force-feeding or forced medical treatment.   The Judge can override your decision not to accept treatment because the right of a prisoner to refuse medical care can be outweighed by the State’s interest in preserving life and in protecting institutional security.  For example, in Commissioner of Correction v. Myers, 379 Mass. 255 (1979), the court ruled that the DOC could force a prisoner to have kidney dialysis treatment because it was necessary to save his life and because the prisoner was “attempting to manipulate his placement within the prison system by refusing life-saving treatment.”    Even without getting a court order, the DOC can discipline a prisoner for refusing to submit to certain diagnostic tests that are necessary to ensure the health of the prison population, such as the skin test for tuberculosis.  See Langton v. Commissioner of Correction, 34 Mass. App. Ct. 564 (1993).   

Please note that if the DOC chooses to file an “emergency” motion for involuntary treatment, the court is not required to give you a hearing, although some judges will do so.   If you believe that the prison may label your situation an “emergency” and seek a hearing to impose medical treatment on you, you may want to send a letter to the court asking for the right to speak at the hearing or to present your position.  You should also send a copy of this letter to the General Counsel for the DOC. (A sample letter is enclosed).

Mental Health Treatment

If you are refusing medication or treatment for a mental health reason, the prison may ask the district court to transfer you to a mental health facility, including the prison called Bridgewater State Hospital, for a 30 day evaluation period.   See G.L. c. 123, § 18(a). You will not have a hearing before this transfer takes place. Once in the Hospital, you can be medicated against your will for a very short period of time, but only if there is a serious risk of immediate harm to yourself or others.   See Rogers v.  Commissioner, Dep’t of Mental Health, 390 Mass. 489 (1983).  If the Hospital wants to make you take medication when there is no longer an emergency, or if it wants you to stay in the hospital for more than 30 days, it must obtain the permission of the court.  The court will appoint a lawyer to represent you at that hearing and you will have the right to attend the hearing and explain why you do not want to take medication or remain in the hospital.

Sample letter to the court

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Claims for Inadequate Medical Care Against Correctional Facilities

A claim for failure to receive adequate medical care which failure you suffered while incarcerated may constitute medical malpractice, a state negligence claim, and/or the infliction of cruel and unusual punishment, a constitutional claim pursuant to state and the United States constitutions.  

Medical Malpractice Claim

In order to receive compensation for a medical malpractice claim, you must first write a demand letter asking for damages to the Attorney General if your injury occurred in a state correctional facility and to the County Commissioners, Sheriff, and Attorney General if your injury occurred in a county facility.  Below is a list of County Commissioners. The letter should be brief and concise. The demand letter must be mailed within two years of the injury for which you are claiming compensation.

The letter should first describe the nature of the medical problem, significant dates of treatment or non-treatment of the problem, the type of injuries you have suffered as a result of the inadequate medical treatment, and describe any short term or long term effects of the failure to receive adequate medical care.  You should name the hospitals where you have been treated and briefly describe the treatment.

The letter should then explain why the Department of Correction (if this occurred in state prison) or why the County, Sheriff, and Commonwealth (if this occurred in a county correctional facility) should be held responsible.  Here you should explain what efforts you made to receive adequate care and describe how the correctional personnel failed to adequately provide you with medical care.

The Attorney General or the County Commissioners/Sheriff and Commonwealth have six months to answer your demand letter.  If he or they denies your claim or fails to answer within six months, you may file a suit in the Superior Court. Your suit must be filed within three years of the injury for which you are claiming compensation.  You may not file a suit unless you have first submitted a demand letter and have given either the Attorney General (for state facilities) or the County Commissioners, Sheriff, and Attorney General (for county facilities) the opportunity to offer you a settlement in response to your demand letter.  After six months, you are free to pursue a complaint. PLS has a sample complaint which we can furnish you after the six months have passed.

In order to pursue a medical malpractice complaint in Massachusetts, the plaintiff is also required, pursuant to G.L. c. 231, §§ 60B et seq., to have a hearing before a medical tribunal.  The plaintiff must submit an expert medical opinion to a medical tribunal.  The medical tribunal then determines “if there is sufficient evidence to raise a legitimate question of liability appropriate for judicial inquiry or whether the plaintiff’s case is merely an unfortunate medical result.”  G.L. c. 231, § 60B. If the tribunal decides there is sufficient evidence, then the case proceeds through the court.

If the tribunal decides there is not sufficient evidence, the plaintiff can still proceed with his case.  However, before doing so, he must post a bond of $6,000 (or more, if the judge so determines) within thirty days of the tribunal.  If he is unable to post the bond, the action is dismissed. There is a provision for someone who is indigent to request a reduced amount for bond.

As a consequence of these requirements, a prisoner wishing to pursue a medical malpractice claim needs a medical expert for the medical tribunal stage of the proceedings.  This will be difficult to accomplish as a pro se litigant.  Therefore, in addition to pursuing the c. 258 processes described above and filing a complaint when the six months have terminated, you will want to seek private counsel.  The following bar referral services may be able to assist you in this matter. Please be sure to tell them that you have already contacted PLS and we cannot assist you. That should avoid the frustration of having them refer you back to us.

Boston Bar Association Referral Service
16 Beacon Street
Boston, MA   02108
(617) 742-0625

Massachusetts Bar Association Referral Service
20 West Street
Boston, MA  02111
(617) 338-0555

How to Comply with M.G.L. Ch. 231 § 60L for Purposes of Initiating a Claim for Medical Malpractice Against a Private Medical Provider for Prison or Jail

In order to receive compensation for medical malpractice which you suffered while incarcerated, according to M.G.L. Ch. 231 § 60L, you must first write a letter asking for damages to the applicable private health care provider(s) involved.  Along with the actual healthcare provider company, you must also include all individuals involved in this incident. The reason for this requirement is to allow healthcare providers a chance to apologize for their actions, offer a settlement, and be put on notice before any litigation is actually filed.   If you are suing the state or county jail or house of correction for medical malpractice, this 60L letter must be written in addition to the presentment letter required by M.G.L. Ch. 258 § 4. The instructions on how to write the 258 presentment letter are included in this packet, The addresses for the two major private health care providers for the DOC are attached to the end of this document.  If you are only suing a private medical provider like MPCH, MHM, or Naphcare you only need to send the 60L letter. This 60L letter must be mailed within two years of the incident for which you are claiming compensation. 

This letter must be sent to the healthcare provider(s) at least 182 days before any lawsuit can be filed against the healthcare provider(s).  This requirement may be shortened to 90 days before filing a lawsuit if you have previously filed a 60L letter against another health care provider(s) involved in the same claim or if you have filed a complaint and started a lawsuit alleging medical malpractice against another health care provider(s) involved in this claim.  The 182-day notice requirement is not required at all if you could not identify and could not have reasonably identified the health care provider(s) to which notice shall be sent as a potential party to the lawsuit, or if the lawsuit against the health care provider(s) is filed within 6 months of the statute of limitations.  

The letter should first talk about the factual basis for the claim against the health care provider(s).  This could include what medical issue affected you at the time, what actions did the health care provider(s) take, or fail to take, to fix this medical issue, and what injuries occurred based on the actions of the health care provider.  Try to be as specific as you can about dates of events, names of people involved, and injuries that occurred from the actions in question.

The letter should then explain why the health care provider(s) was responsible for the injuries that you have suffered.  Here you should include the duty of care that the health care provider(s) owed you to properly care for your initial medical concern.  You should also include in what manner the health care provider(s) breached this duty, including exactly what actions were taken on what dates, and also what actions should have been taken by the health care provider(s) that would have been the proper actions to take in their position.  Last, you should include how the actions of the health care provider(s) were the actual cause of your current injuries.  

Within 56 days of sending this letter to the applicable private health care provider(s), you must allow the health care provider(s) to see any medical documents you have in your possession that prove the information you included in the letter.  Also, if you know of any other medical records that apply to your case, but you do not have in your possession, then you must fill out a release to allow the records to be shown to the health care provider(s).

The health care provider(s) must respond to your letter within 150 days after they receive the notice.  In this response, they are allowed to offer you a potential settlement for your claim against them. If they do not offer you a settlement, but deny the claim or fail to answer your letter within 150 days, you are free to file the lawsuit against the health care provider(s).  The statute of limitations is three years, so your suit must be filed within three years of the date of the incident that caused your injuries/complications.    

If you have any questions or concerns please call or write Prisoners’ Legal Services at the number or address listed at the top.

Correct Care Solutions (CCS)
110 Turnpike Rd Suite 308
Westborough, MA 01581

MHM Services, Inc.
110 Turnpike Rd, Suite 308
Westborough, MA 01581 (Regional Office)
1593 Spring Hill Rd, Suite 600
Vienna, VA 22182 (Corporate Office)

NaphCare, Inc.
2090 Columbiana Rd.
Ste 4000
Birmingham, AL 35216 (Corporate Office)

Constitutional Claim of Cruel and Unusual Punishment

If the correctional authorities were deliberately indifferent to your serious medical need, you may also have a claim that the authorities violated your constitutional right to be free from cruel and unusual punishment pursuant to the Eighth Amendment to the U.S. Constitution and Article 26 of the Massachusetts state Constitution.  This claim may be pursued without first proceeding through the c. 258 processes described herein, (1), for medical malpractice claims. However, if you have both medical malpractice and constitutional claims, you should first file your c. 258 demand letter, wait six months, and then file suit and include both claims at the same time.  

If you allege only constitutional grounds for your claim of inadequate medical care, you do not need to pursue the c. 258 process and do not need to proceed with a medical tribunal and the possible need to post bond.  The decision whether or not to pursue both malpractice and constitutional grounds must be made on a case by case basis.

Address of Attorney General, County Commissioners, and Sheriffs

Your demand letter must be sent to the Attorney General of the Commonwealth AND to the addresses listed below the name of the county you are suing.  The addresses and the people you are sending the demand letter to have changed in some counties because some of the county governments have been abolished.  Be sure to send the letter to all the required people.

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Important Medical Release Forms

In order for PLS to conduct advocacy on your behalf, we will need the following forms signed and witnessed. The following medical releases are needed in order for us to discuss your confidential medical history with relevant DOC officials in our advocacy.

UMass Memorial Releases

LSH Medical Release

DOC Medical Releases

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