Petition for Writ of Certiorari — Foley v. Berg
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In the Supreme Court of the United States
In re Sophia Foley,
On Petition for Writ of Certiorari
to the Court of Appeals of Maryland
Petition for Writ of Certiorari
Steven L. Tiedemann, Esq.
Counsel of Record
Davis, Agnor, Rapaport & Skalny, LLC
10500 Little Patuxent Parkway, Suite 460
Columbia, Maryland 21044
(410) 995-5800
Michael W. Davis, Esq.
Angela B. Grau, Esq.
Davis, Agnor, Rapaport & Skalny, LLC
10500 Little Patuxent Parkway, Suite 460
Columbia, Maryland 21044
(410) 995-5800
QUESTION PRESENTED FOR REVIEW
I. Does the Federal Constitution provide,
independent of any state or federal collateral order
doctrine, a right to appeal an interlocutory order
infringing upon a fundamental liberty interest?
LIST OF PARTIES
Petitioner: Michael Foley,
Husband and Health Care Agent of Sophia
Foley
Respondent: Eugenia Berg, Sister of Sophia Foley
Interested
Party: Sophia Foley
Note: No corporate disclosure statement is required by
S.Ct. Rule 29.6 because all parties are individuals.
TABLE OF CONTENTS
Questions Presented
For Review ; ; i
List of Parties ; ll
Table of Contents , ; i
Table of Cited Authorities. ; Vv
Citations to Reports of
Lower Opinions l
Statement of Jurisdiction. : ; ]
il
Constitutional Provisions,
Treaties, Stacutes, Ordinances,
and Regulations Involved In Case.
Statement of the Case
I. Factual Background
II. S.Ct. Rule 14.1(g)
Specification
A. Trial Court
RB. Court of Special Appeals
of Maryland
C. Court of Appeals
of Maryland
Arguments Amplifying
Reasons for Writ
I. Statement of S.Ct.
Rule 10 Considerations
A. S.Ct. Rule 10(b)
B. S.Ct. Rule 10(c)
Il. Argument
A. Introduction
ili
N
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B. Mrs. Foley’s Fundamental
Interests are Clearly
Recognized After Sell ; . 10
C. Sell's “Murky” Collateral
Order Doctrine and
Constitutional Holding ; 10
D. Does an Independent
Constitutional Right
Provide for an Interlocutory
Appeal Protecting
Fundamental Liberty
Interests? ; 13
III. Conclusion ; 16
Appendix Al
Opinion of Court of Appeals
of Maryland , , Al
Opinion of the Circuit Court for
Anne Arundel County : , AlO
Order of the Circuit Court for Anne
Arundel County ; ; Al3
Opinion of the Court of Special
Appeals of Maryland , Al4
Court of Appeals of Maryland’s
Order Denying Reconsideration . A37
U.S. Const. Amend. XIV, §1 A37
iV
mnt aR ORLE 8 i
bai
28 U.S.C. § 1257
Md. Code Ann., Health Gen. §5-601.
Md. Code Ann., Health Gen. §5-602.
Md. Code Ann., Health Gen. §5-605.
Md. Code Ann., Health Gen. §5-616.
Md. Code Ann., Health Gen. §5-618.
Md. Rule 2-423
Motion to Reconsider to Court
of Appeals of Maryland
TABLE OF CITED AUTHORITIES
Cases
Cohen v. Beneficial Life Loan
Corp., 337 U.S. 541, 69 S.Ct. 1221,
93 L.Ed. 1528 (1949).
Coopers & Lybrand v. Livesay,
437 US. 463, 98 S.Ct. 2454, 57
L.Ed.2d 351 (1978).
Cruzan v. Director, Missouri Dep't
of Health, 497 U.S. 261, 110 S.Ct.
2841, 111 L.Ed.2d 224 (1990).
A38
A38
A42
Ad4
A47
A47
A47
A48
15
15
ee
In re Brittany S-, 147 N.H. 489,
792 A.2d 384 (2002).
In re Foley, 373 Md. 627, 820 A.2d
587 (2003).
In re Master Lock, 528 F.2d 5
(2d Cir. 1975).
Pennsylvania v. $9,847.00 U.S.
Currency, 161 Pa. Cmwith. 548,
637 A.2d 736, rev'd on other
grounds, 550 Pa. 192 (1997).
Pittsburgh Corning Corp v. James,
353 Md. 657, 728 A.2d 210 (1999). .
Sell v. United States, _ U.S. __,
123 S.Ct. 2174, __ L.Ed.2d __
(2003).
Statutes
28 U.S.C. § 1257.
Maryland Health Care Decisions
Act (““HCDA”) (Md. Code Ann.,
Health Gen. §§ 5-601; 5-602;
5-605; 5-616; 5-618).
Rules
Md. Rule 2-423.
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8-16
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CITATION TO REPORTS OF LOWER OPINIONS
In re Foley, 373 Md. 627, 820 A.2d 587 (2003)
(Appendix at Al), motion for reconsideration denied
(Appendix at A37), rev 'g No. 222, Sept. Teim 2001 (Md.
App. filed Nov. 20, 2001) (unreported slip op.) (Appendix at
Al5).
STATEMENT OF JURISDICTION
Petitioner seeks review of a state trial court’s March
20. 2001 interlocutory order and the Court of Appeals of
Maryland’s April 4, 2003 decision determining that the trial
court’s order was not subject to appeal. Petitioner sought a
rehearing; however his motion for reconsideration was
denied by the Court of Appeals of Maryland on May 6, 2003.
This Court has jurisdiction to review the decision of
the Court of Appeals of Maryland, pursuant to 28 U.S.C.
§1257(a) (Appendix at A38), because Petitioner seeks
enforcement of rights protected under the Fourteenth
Amendment to the United States Constitution (Appendix at
A37).
CITATIONS TO CONSTITUTIONAL PROVISIONS,
TREATIES, STATUTES, ORDINANCES, AND
REGULATIONS INVOLVED IN CASE
Petitioner has included (Appendix at A37-A48), the
verbatim text of the following statutes involved in this case:
U.S. Const. amend. XIV, §1.
28 U.S.C. § 1257.
EE
Md. Code Ann., Health Gen §§5-601, 5-602, 5-605, 5-616, 5-
618 (Maryland Health Care Decisions Act (“HDCA”)).
Md. Rule 2-423.
STATEMENT OF THE CASE
I. Factual Background
In 1992, Sophia Foley’s (““Mrs. Foley”) board-
certified neurologist determined that she suffered from
dementia, most likely of the Alzheimer’s type. Prior to the
deterioration of her disease, and while competent, she
executed a valid health care power of attorney naming her
husband, Petitioner Michael Foley, as her health care agent.
Such an appointment of an agent is authorized and
contemplated by the Maryland HDCA (see Appendix at A38-
A47), a statute tailored to satisfy the requirements of this
Court’s decision in Cruzan v. Director, Missouri Dep't of
Health, 497 U.S. 261, 110 S.Ct. 2841, 111 L.Ed.2d 224
(1990).
In 1997, one of Mrs. Foley’s sisters, Respondent
Eugenia Berg, filed her first guardianship action alleging that
Mrs. Foley’s dementia was caused by Lyme disease. Shortly
thereafter, Ms. Berg’s first action was properly dismissed, but
not before Mr. Foley’s agency, and its propriety, were
conclusively established by the trial court.
In 2000, Ms. Berg instituted the instant matter by
filing her second guardianship action seeking appointment as
guardian of Mrs. Foley’s person. Ms. Berg sought to wrest
control of Mrs. Foley from her husband, undermine Mrs.
Foley’s health care power of attorney, and render impotent
Mr. Foley’s health care agency.
Ms. Berg’s court filings in the second action, stated
that “Mr. Foley .. . has refused to... permit Mrs. Foley to
be taken to a doctor for the purpose of having Mrs. Foley
examined and treated for Lyme disease . . . ” In fact, in 1997
and in accord with Center for Disease Control testing
procedures, Mrs. Foley’s board-certified physicians
determined that Mrs. Foley was not infected with Lyme
disease. Undeterred by these results, Ms. Berg sought to be
appointed Guardian so that she could have Mrs. Foley
“examined and treated for Lyme disease,” in a manner
contrary to the generally accepted methods of testing for this
dreaded disease and contrary to the decision of Mrs. Foley’s
husband and proper health care agent, Mr. Foley.
It is uncontested that Mrs. Foley is not able to make
her own health care decisions. It is also uncontested that her
husband is the properly appointed health care agent, pursuant
to the HDCA. (See relevant sections of the HDCA,
Appendix at A38-A47.) Further, it is not contested that Mr.
Foley objects, in his role as his wife’s properly appointed
health care agent, to the administration of additional tests and
treatment for Lyme disease. Finally, there has been no
allegation, much less substantiation, that Mr. Foley’s
decision is, in any way, contrary to his wife’s wishes.
Apparently unwilling to wait for the trial court to
reach the merits of her second guardianship action in due
course, Ms. Berg instead sought to have Mrs. Foley tested for
Lyme disease by improperly employing a motion for physical
examination pursuant to a state discovery rule. (See Md.
Rule 2-423 at A41.) Ms. Berg’s “discovery” motion sought
implementation of an “experimental” protocol for diagnosing
Lyme disease prescribed by experts hired by Ms. Berg, which
is exactly the same relief sought in the case-in-chief, namely,
control over Mrs. Foley for the purpose of testing for, and
resultant treatment of, Lyme disease.
Mr. Foley, asserting his duty and his responsibility as
Mrs. Foley’s appointed health care agent, appropriately
objected to the motion. Because it is undisputed that Mrs.
Foley was “disabled” under Maryland law, an additional
examination to establish her disability was unnecessary. Ms.
~ Berg’s motion for examination, therefore, did not seek to
establish or confirm Mrs. Foley’s disability. Instead, it
sought to implement a new testing protocol for Lyme disease.
Remarkably, the trial court granted the motion, over Mr.
Foley’s objection, authorizing the Lyme testing and other
tests.
Mr. Foley timely appealed the trial court’s decision.
The Chief Judge of the Court of Special Appeals of Maryland
initially determined that an appeal should proceed, under
Maryland’s collateral order doctrine. ! Later, the intermediate
appellate court expressly found that Maryland’s version of
the collateral order doctrine allowed appellate review and
proceeded to vacate the trial court “discovery” order. (See
Court of Special Appeals Opinion, Appendix at A26-A31.)
The Maryland Court of Appeals granted Ms. Berg’s
petition for certiorari, reversed the Court of Special Appeals,
and directed that the appeal be dismissed because the trial
court’s interlocutory “discovery” order was not subject to
appeal, under Maryland’s collateral order doctrine.
' As should become evident infra, Mr. Foley does not seek
directly review of Maryland’s collateral order doctrine, or its
federal counterpart. Although the state’s doctrine mirrors the
federal version, see Pittsburgh Corning Corp. v. James, 353 Md.
657, 661 n.1, 728 A.2d 210, 212 n.1 (1999) (discussing Maryland’s
prior adoption of federal doctrine), the issue isolated for this
Court’s review is the federal constitutional right to an appeal when
an interlocutory order infringes upon a fundamental liberty
interest.
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Mr. Foley asked the Court of Appeals of Maryland to
reconsider its interpretation and application of the Maryland
collateral order doctrine. Mr. Foley focused his motion on
the constitutional implications of both the trial court’s order
and the Court of Appeals of Maryland’s decision denying
appellate jurisdiction.
Mr. Foley argued that the trial court's “discovery”
order, compelling Mrs. Foley to endure the Lyme disease
tests over the objection of her health care agent, violated
irreparably Mrs. Foley’s substantive due process rights in her
privacy, self-determination, and bodily integrity liberty
interests. Moreover, he argued that his wife’s significant
right to due process protecting those same liberty interests
was violated by the trial court’s order permanently and
severely infringing upon her fundamental liberty interests.
Finally, Mr. Foley argued that the Maryland Court of
Appeals, by denying review of the trial court’s order
permanently and irreparably depriving Mrs. Foley’s
fundamental liberty interests, directly violated Mrs. Foley’s
due process rights.
IL S.Ct. Rule 14.1(g) Specification of Stage
When Federal Questions First Raised
The various federal constitutional issues raised herein
were raised by Mr. Foley at every stage of the instant
litigation.
A. Trial Court.
Before the trial court, Mrs. Foleys’ constitutional
rights were first raised in a motion to dismiss filed by Mr.
Foley. Petitioner stated, on page nine of the motion, that any
decision disregarding Mrs. Foley’s health care agent’s
instructions “would completely frustrate Sophia’s health care
directive, and would be contrary to the spirit and the intent of
the Health Care Decisions Act, as well as to her well-
recognized constitutional rights.” (Emphasis added.)
Also, at oral argument concerning Ms. Berg’s
discovery motion for physical examination, Mr. Foley raised
Mrs. Foley’s privacy rights, which include her right to self-
determination and bodily integrity. Mr. F oley’s counsel, at :
page 28 of the transcript, stated “[t]he second issue . . . cited i
by Petitioner in both of his [written] filings [indicate that] we |
really have a constitutional right to privacy here and there has
to be more to this than simply somebody thinks that there
ought to be a second opinion... .”
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Moreover, the trial court acknowledged in its opinion
that the right, sought to be protected by Mr. Foley, was Mrs. i
Foley’s constitutional right of privacy. (See Appendix at j
All.) j
B. Court of Special Appeals of Maryland.
Before Maryland’s intermediate appellate court, Mr.
Foley’s Brief raised his wife’s constitutional right to make
medical decisions and cited Cruzan and the liberty interests
protected therein. Specifically, Mr. F oley argued, at page 29
of his Court of Special Appeals brief, that “[w]e respectfully
submit that this Court must reject any attempt to reduce or
minimize this right, a right that was recognized by the United
States Supreme Court in Cruzan... ., and a right that was ‘
statutorily recognized by the enactment of the . . .” Maryland
HCDA.
PR Te eRe TC
Furthermore, in his Reply Brief, Mr. Foley asserted
that his right to make decisions was based on his wife’s :
constitutionally protected liberty interests. He stated at page
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five of the reply brief that “the exercise of one’s right to
make health care decisions for oneself is based on one’s
constitutionally protected liberty interests, as described in
[Cruzan]....”
Finally, the Court of Special Appeals, in its opinion,
identified the important liberty interests at issue in the case.
(See Appendix at A27-A28.)
C. Court of Appeals of Maryland.
Before the Court of Appeals of Maryland, Mr.
Foley’s Brief asserted his wife’s constitutionally protected
liberty interests. Mr. Foley argued, on page 21 of his brief,
that in Cruzan:
“the Supreme Court removed any doubt that
there is a constitutionally protected liberty
interest associated with the right to refuse life
saving procedures . .: . The Cruzan decision .
_. mandated the recognition of patient self-
determination .... The majority ... [left] it
up to the states to decide, among other things,
whether to defer to the decisions of a
surrogate decision maker.”
Finally, in his motion requesting reconsideration, Mr.
Foley devoted the entire document to the various violations
of the substantive and procedural due process protections of
Mrs. Foley’s right to privacy, bodily integrity and self-
determination. (See Motion to Reconsider, set forth in full at
Appendix at A48-A65.) The Court’s terse denial of the
reconsideration request did not mention, or address, the
constitutional issues raised by Mr. Foley.
ARGUMENT AMPLIFYING REASONS FOR WRIT
I. Statements of S.Ct. Rule 10 Considerations
A, S.Ct. Rule 10(b).
The Court of Appeals of Maryland’s decision
(determining that, despite permanent and irreparable
deprivation of fundamental liberty interests, an interlocutory
order is not subject to immediate appeal) is at odds with other
state courts of last resort and federal courts of appeal. See Jn
re Master Lock, 528 F.2d 5 (2d Cir. 1975) (where due
process rights are irreparably injured, interlocutory appeal
will lie); In re Brittany S., 147 N.H. 489, 490, 792 A.2d 384,
385 (2002) (court ignored collateral order doctrine because of
federal due process claim asserting fundamental rights of
parent); Pennsylvania v. $9,847.00 U.S. Currency, 161 Pa.
Cmwilth. 548, 557, 637 A.2d 736, 741 (1994), rev'd on other
grounds, 550 Pa. 192, 704 A.2d 612 (1997) (deciding that
when federal constitutional right is permanently denied, that
right to immediately appeal exists). See S.Ct. Rule 10(b).
B. §.Ct. Rule 10(c).
The instant matter presents an attractive and useful
_ vehicle for this Court to clarify important, yet undecided,
questions of federal constitutional law left in the wake of Sell
v. United States, __ U.S. ___, 123 S.Ct. 2174, ___ L.Ed.2d
___ (2003)°. The Court of Appeals of Maryland, in the
instant civil state court matter, has decided an important
> The Sell decision was rendered on June 16, 2003. This was after
the Court of Appeals of Maryland denied Mr. Foley’s Motion for
Reconsideration. Thus, Se// did not form a basis for Mr. Foley’s
motion to reconsider or the Court’s denial thereof.
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federal constitutional issue in a way that, Petitioner argues,
conflicts with Se// and its predecessors. See S.Ct. Rule 10(c).
The posture of Mr. Foley’s state court case removes from this
Court’s analysis the questions regarding the proper
application of jurisdictional statute or judicial doctrine
present in Se//. Only federal constitutional considerations,
regarding the right to appeal an interlocutory order depriving
a fundamental right, remain standing and viable for this
Court’s review here.
IT, Argument
A. Introduction.
The question that remains open, post-Se//, is: Does
Sell’s protection of “severe intrusions” upon “important
constitutional issues” flow from the federal collateral order
doctrine or, in the absence of the federal collateral order
doctrine, does the Federal Constitution provide,
independently, a right to appeal?
Put another way, it is not clear, from the Se// majority
and dissenting opinions, the extent to which the collateral
order doctrine protects pre-existing constitutional rights. Of
course, these constitutional rights exist with or without
judicially created doctrines, like the collateral order doctrine.
However, Se// did not elucidate the extent to which
protection of these rights stems from the federal collateral
order doctrine or from some inherent constitutional
protection operating independently of that doctrine.
In his argument below, Mr. Foley first asserts that
Mrs. Foley’s fundamental rights are clearly recognized after
Sell. He then describes the “murky” resolution of federal
constitutional protections of those fundamental rights created
by the majority and dissenting opinions in Se//. Finally, Mr.
Foley frames the proper question for this Court’s present
analysis: Does an Independent Constitutional Right Provide
for an Interlocutory Appeal Protecting Fundamental Liberty
Interests?
B. Mrs. Foley’s Fundamental Interests are Clearly
Recognized After Sell. ;
After Sell v. United States, ___ U.S. __, 123 S.Ct.
2174, 2182, ___ L.Ed.2d ___ (2003), there should be no
question that Mrs. Foley has a protected fundamental liberty
interest in avoiding involuntary medical testing and
treatment. The Se// majority determined, without apparent
dissent, that a compelled medical intrusion into one’s body
implicates expectations of privacy and security. Jd. The Sell
Court also stated ‘involuntary medical treatment raises
questions of clear constitutional importance”. Jd.
7 In the courts below, Mr. Foley asserted Mrs. Foley’s
constitutional right to avoid involuntary medical testing and
treatment. In this Petition, however, he does not seek
reaffirmation of her fundamental right from this Court. He
presumes its existence after Se//. Instead, he seeks to have
this Court clearly establish his constitutional entitlement, as
Mrs. Foley’s health care agent, to enforce her rights via an
interlocutory appeal.
C. Sell’s “Murky” Collateral Order Doctrine and
Constitutional Holding.
In Sell, this Court recently determined that a criminal
defendant was entitled to an appeal of an interlocutory order.
In so doing, the Se// majority determined that the order
satisfied all three prongs of the federal collateral order
10
doctrine. See Sell, 123 S.Ct. at 2182. The controversial
aspect of that determination, according to the Se// dissenters,
was the determination that Dr. Sell satisfied the third and
final prong of the doctrine. See Sell, 123 S.Ct. at 2187-2191
(Scalia, J dissenting).
The majority determined that “[b]y the time of trial
[Dr.] Sell will have undergone forced medication — the very
harm that he seeks to avoid. He cannot undo that harm even
if he is acquitted.” Jd. Thus, this Court opined that Dr. Sell
satisfied the third-prong of the collateral order doctrine,
namely, that the interlocutory order in the Sell case was
“effectively unreviewable on appeal from a final judgment”.
Id. The Court determined that appellate jurisdiction existed
and went on to consider the merits of Dr. Sell’s appeal.
The Se// dissent, however, contended that the majority
wrongly applied this third-prong. First, the dissenters argued,
the majority allegedly failed to consider an oft-stated rule --
that the collateral order doctrine is applied more strictly in
criminal cases. Se//, 123 S.Ct at 2190. Second, the dissent
complained of a “breathtaking expansion” of federal
appellate jurisdiction by allowing appeals for any criminal
defendant who alleges that, if the trial court’s interlocutory
order stands, important federal constitutional rights will be
forever lost. Jd.
Specifically, the dissent raised three potential
scenarios available, post-Se//, to crafty and “opportunistic”
criminal defendants. The dissent predicted that:
“If it is applied faithfully . . .. any criminal
defendant who asserts that a trial court order
will, if implemented, cause an immediate
violation of his constitutional . . . rights may
immediately appeal. He is empowered to hold
—————————
1]
up the trial for months by claiming that review
after final judgment "would come too late" to
prevent the violation. A trial-court order
requiring the defendant to wear an electronic
bracelet could be attacked as an immediate
infringement of the constitutional right to
"bodily integrity"; an order refusing to allow
the defendant to wear a T-shirt that says
"Black Power" in front of the jury could be
attacked as an immediate violation of First
Amendment rights; and an order compelling
testimony could be attacked as an immediate
denial [of] Fifth Amendment rights. All these
orders would be immediately appealable
[under the majority’s decision in this case].”
Sell, 123 S.Ct at 2190 (Scalia, J. dissenting).
The majority countered Justice Scalia’s dissent by
briefly claiming:
“By the time of trial [Dr.] Sell will have
undergone forced medication--the very harm
that he seeks to avoid. He cannot undo that
harm even if he is acquitted. Indeed, if he is
acquitted, there will be no appeal through
which he might obtain review. These
considerations, particularly those involving
the severity of the intrusion and corresponding
importance of the constitutional issue, readily
distinguish Sell's case from the examples
raised by the dissent.” Sell, 123 S.Ct at 2190
(internal citations omitted).
The Sell majority clearly sought to protect certain
constitutional rig*ts from permanent deprivation by a court’s
12
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interlocutory order. In light of Sell, the federal collateral
order doctrine, it would seem, protects “severe intrusions”
upon “important constitutional issues.” The source of that
protection was some combined “murky” effect of the
collateral order doctrine, and an independent constitutional
protection.
D. Does an Independent Constitutional Right Provide for
an Interlocutory Appeal Protecting Fundamental Liberty
Interests?
Again, the question that remains open, post-Sell, is:
Does Seil’s protection of “severe intrusions” upon “important
constitutional issues” flow from the federal collateral order
doctrine or, in the absence of the federal! collateral order
doctrine, does the Federal Constitution provide,
independently, a right to appeal? Se// did not elucidate the
extent to which protection of these rights stems from either
source. Of course, state courts need to know this information
because they are not subject to the federal collateral order
doctrine.
Essentially, Petitioner now asks this Court. in this
civil state court matter, to decide (without regard to state or
federal jurisdictional statutes or procedures and/or judicially
created doctrines) whether there is a federal constitutional
right to an appeal, independent of the federal collateral order
doctrine, when a fundamental liberty interest is severely and
permanently denied by an interlocutory order.
The Se// decision is decided on, and clearly
intertwined with, the application of a judicially “invented”
doctrine, i.e., the collateral order doctrine. Clearly, the Se//
decision is perched upon the proper application of the federal
3 See Sell, 124 S.Ct at 2189, n.4 (Scalia, J. dissenting).
version of the doctrine, as well as upon constitutional
protection of Dr. Sells’s fundamental liberty interests.
However, whether the violation of the Federal Constitution or
the application of the collateral order doctrine, or both,
mandate the appeal is still not entirely clear from Sell.
On the other hand, the present matter flows from the
application of an almost identical Maryland judicial doctrine,
similarly “invented” by state court judges. Thus, removed
from this Court’s analysis are the questions regarding the
proper application of any jurisdictional statute or judicial
doctrine present in Se// -- only federal constitutional
considerations remain standing.
It is Petitioner’s position that the Federal collateral
order doctrine, and the corresponding Maryland doctrine,
each shield (perhaps by happenstance) fundamental liberty
interests protected by the Federal Constitution. To be sure,
the federal doctrine, in addition to its constitutional heroics,
also protects some interests not afforded federal
constitutional protection. This Court should now decide the
extent to which the constitutional right to appeal immediately
an interlocutory, yet permanent, deprivation of fundamental
rights exists without regard to the collateral order doctrine.
Exposition of these rights will help states, like Maryland,
clarify the effect of such federal constitutional rights on their
state-specific judicial doctrines. This case provides the
perfect vehicle for that clarification.
The Se// decision, and its predecessors’, all turn on
the collateral order doctrine and not directly upon the
underlying constitutional shelter that the doctrine sometimes
* See Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69
S.Ct. 1221, 93 L.Ed. 1528 (1949) through Coopers & Lybrand v.
Livesay, 437 U.S. 463, 98 S.Ct. 2454, 57 L.Ed.2d 351 (1978).
14
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provides, intentionally or otherwise, to certain fundamental
liberty interests.
The instant matter, originating in state court, insulates
this underlying constitutional issue from the collateral effects
of jurisdictional statutes and judicial doctrines because it
reviews the application of a state’s collateral order doctrine
under federal constitutional standards. Simply, this Court is
not called upon, in the instant matter, to review directly
Maryland’s collateral order doctrine. In fact, the proper
review and analysis of that doctrine rests with the Court of
Appeals of Maryland. The only issue that will face this
Court is whether application of that state-court doctrine
passes federal constitutional muster. Thus, this Court's Foley
decision will clearly espouse federal constitutional law as it
should be applied to all state and federal appeals.
Further, this matter stems from a civil dispute so the
Court’s analysis need not be clouded by the more stringent
collateral order analysis applicable to criminal causes and the
resultant consideration of the state’s significant interest in the
speedy resolution of criminal matters. See Sell, 123 S.Ct at
2190 (Scalia, J. dissenting).
By deciding to hear this case, this Court can cleanly
address the important constitutional issues underlying the S¢4
collateral order doctrine decision. Thus, the Court can
clearly address important questions concerning how federai
constitutional rights must, or must not, be protected. The
Court can determine when to allow an aveniie for appeals
asserting severe and permanent deprivation of constitutional
rights by interlocutory orders. This, of course, will aid state
courts in applying their similar, judicially-invented, doctrines
in a constitutionally proper fashion. See S.Ct. Rule 10(c).
Additionally, the federal courts will benefit from the
clarification of the independent constitutional basis for an
15
appeal pursuant to the federal collateral order doctrine. See
S.Ct. Rule 10(b).
IIT. Conclusion
For the reasons set forth above, Petitioner Michael
Foley respectfully requests that a writ of certiorari be issued
to the Court of Appeals of Maryland and that this matter be
reviewed by this Honorable Court or, in the alternative, that
this Court vacate the order of the Court of Appeals of
Maryland and remand the matter for consideration in light of
Sell.
Respectfully submitted,
Steven L. Tiedemann, Esq.
Counsel of Record
Michael W. Davis, Esq..
Angela B. Grau, Esq.
Davis, Agnor, Rapaport & Skalny, LLC
10500 Little Patuxent Parkway, Suite 460
Columbia, Maryland 21044
(410) 995-5800
16
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APPENDIX
S.Ct. Rule 14.1(i)()
Opinions and Orders Entered in Conjunction with
Judgments to be Reviewed
Opinion Of The Court Of Appeals Of Maryland
In re Sophia E. Foley, an Adult.
Court of Appeals of Maryland.
No. 123, Sept. Term, 2001.
April 4, 2003.
“ELDRIDGE, Judge. -
The issue in this case is whether the Circuit Court's
interlocutory order for a medical examination, under the
circumstances here involved, is appealable under the
collateral order doctrine. The Court of Special Appeals held
that the order was appealable. We disagree.
Sophia E. Foley, a sixty-two year old woman, resides in
Annapolis, Maryland, with her husband and seventeen-year-
old **589 daughter. In 1988, Sophia's husband, Michael
Foley, began noticing that Sophia suffered from lapses in
memory and confusion. Sophia's memory loss became
progressively worse, and, in 1992, one of her physicians
determined that Sophia suffered from dementia, most likely
of the Alzheimer's type. Also in 1992, Sophia executed a
health care power of attorney designating her husband,
Michael, as her health care agent.
In 1997, one of Sophia's sisters, Eugenia Berg, filed in the
Circuit Court for Anne Arundel County a guardianship
petition, alleging that Sophia's dementia was caused by Lyme
disease and that the health care Sophia had been receiving
was inadequate because Michael failed or refused to have her
tested for Lyme disease. Shortly thereafter, Michael had
Sophia tested for Lyme disease, and the particular tests
administered to her indicated that she was not infected by
*630 Lyme disease. Subsequently, after a hearing, the Circuit
Court dismissed the guardianship petition.
In 2000, Eugenia Berg instituted the present action by filing
in the Circuit Court for Anne Arundel County a new
guardianship petition, seeking appointment as co-guardian of
the person of Sophia. She designated as "interested persons"
herself, three other sisters of Sophia, Michael, Sophia's
daughter, Sophia's father, and the Director of the Anne
Arundel County Department of Social Services. Eugenia
alleged that Michael had failed to pay for Sophia's adult day
care at the Deerfield Adult Day Care Center, although
Eugenia had provided him with money to do so.
Later, Eugenia Berg filed in the guardianship case a motion
pursuant to Maryland Rule 2-423 for an examination and
testing of Sophia. [FN1] Eugenia asserted that an
examination was needed to determine whether Sophia had
Lyme disease or other medical conditions that were causing
her dementia and for which she was not being treated.
Eugenia's position and Michael's response were summarized
by the Court of Special Appeals as follows:
FN1. Maryland Rule 2-423 states as follows:
"Rule 2-423. Mental or physical examination of persons.
When the mental or physical condition or characteristic of a
party or of a person in the custody or under the legal control
of a party is in controversy, the court may order the party to
submit to a mental or physical examination by a suitably
licensed or certified examiner or to produce for examination
the person in the custody or under the legal control of the
party. The order may be entered only on motion for good
cause shown and upon notice to the person to be examined
RT Triana
on ae rere ne:
se ta ha hia
SS ES a en See ee
and to all parties. It shall specify the time and place, manner,
conditions, and scope of the examination and the person or
persons by whom it is to be made. The order may regulate the
filing and distribution of a report of findings and conclusions
and the testimony at trial by the examiner, the
payment of expenses, and any other relevant matters."
"Eugenia alleged that the Lyme disease tests performed on
Sophia in 1997 were not clinically sensitive enough, or were
performed too long after exposure, to detect the presence of
Borrelia burgorferi, the agent that causes Lyme disease.
*63] “Eugenia's motion for physical «examination and testing
sought to have Sophia retested for Lyme disease under a
protocol prescribed by Eugenia's medical experts, Ritchie S.
Shoemaker, M.D., and Anthony L. Lionetti, M.D. The testing
protocol called for the use of polymerase chain reaction
("PCR") DNA testing and for repeating the Western blot
blood tests performed in May 1997. The protocol would
require that a series of ten urine specimens and a single blood
specimen be taken from Sophia over a ten-week period.
**59( "Michael filed an opposition to the motion for
physical examination and testing. Eugenia's motion,
Michael's opposition, and supplemental memoranda filed by
each were supported by affidavits of their respective expert
witnesses. Drs. Shoemaker and Lionetti, and Zdzislaw
Fiutowski, M.D., a general practitioner who had examined
Sophia in 1994 and 1995, in Michigan, submitted affidavits
in support of Eugenia's motion. They opined, in essence, that
symptoms of Lyme disease and symptoms of Alzheimer's
disease can be similar; that advanced testing techniques such
as PCR DNA testing are more effective in diagnosing Lyme
disease than are the tests Sophia underwent [in] 1997; and
that, if Sophia were found to be infected by the agent that
causes Lyme disease, she could be treated for it.
"Dr. Fiutowski did not opine about whether Sophia's
dementia would lessen or improve if she were treated for
Lyme disease. Dr. Lionetti addressed that topic in his
affidavit, saying only, ‘One would hope to see improvement
in [Sophia's] neuropsychological status within three months
to a year of successful therapy.’ He acknowledged, however,
that therapy is not always successful, i.e., that it does not
always result in the patient no longer being infected with the
agent that causes Lyme disease. In his affidavit, Dr.
Shoemaker observed: 'What benefit will come to Mrs. F oley
if she is tested for Lyme? I have nothing to correct the
progressive cerebral atrophy of Mrs. Foley ... Mrs. F oley
won't regrow her atrophic brain. Mr. Foley won't have his
wife back to care for his daughter.’
*632 "Michael submitted affidavits and/or deposition
testimony by Dr. Blum, George C. Samaras, M.D. (another of
Sophia's treating doctors), and Andrew R. Pachner, M.D. Dr.
Samaras attested not only that Sophia had tested negative for
Lyme disease under the CDC protocol administered in 1997
but also that in the 8 years she had been his patient, she never
had presented any clinical symptoms of Lyme disease. Dr.
Samaras opined that, based on his experience in treating
Sophia, she would need to be sedated even to draw a blood
sample.
"In Dr. Blum's deposition testimony, from 1997, he opined
that Sophia has Alzheimer's disease, that she does not have
Lyme disease, that her prognosis is poor, and that
Alzheimer's disease only can be definitively diagnosed on
autopsy. Dr. Pachner opined that to a reasonable degree of
medical certainty, and based on the tests administered in
1997, Sophia does not have Lyme disease and Lyme disease
‘can be ruled out as a cause of [her] dementia.’ "
The Circuit Court held hearings on the motion for an
examination and testing on two different dates, and thereafter
the court issued an opinion and an order granting the motion.
Michael filed a motion for reconsideration which the Circuit
Court denied, and thereafter he filed a notice of appeal. The
A 4
Court of Special Appeals, in an unreported opinion, held that
the order for an examination was appealable under the
collateral order doctrine, held that the Circuit Court had
abused its discretion in ordering an examination, and vacated
the Circuit Court's order.
Eugenia filed a petition for a writ of certiorari, challenging
both the Court of Special Appeals’ holding that the order was
appealable and the appellate court's holding that the Circuit
Court's order represented an abuse of discretion. This Court
granted the petition, Jn re Sophia Foley, 368 Md. 239, 792
A.2d 1177 (2002), and, as previously indicated, we shall
reverse **59/ on the ground that the order was not
appealable. Accordingly, we shall not reach the merits of the
controversy.
*633 The parties, as well as the Court of Special Appeals, all
agreed that the Circuit Court's order was not appealable as a
final judgment in the traditional sense, that the order was
entirely interlocutory, and that it was not an appealable
interlocutory order under Maryland Code (1974, 2002
Repl.Vol.), § 12-303 of the Courts and Judicial Proceedings
Article, designating certain interlocutory orders as
immediately appealable. The respondent and the Court of
Special Appeals relied solely upon the so-called collateral
order doctrine.
The "collateral order doctrine 'treats as final and appealable
a limited class of orders which do not terminate the litigation
in the trial court.'" Bunting v. State, 312 Md. 472, 476, 540
A.2d 805, 807 (1988), quoting Public Service Comm'n v.
Patuxent Valley, 300 Md. 200, 206, 477 A.2d 759, 762
(1984). The doctrine is a very limited exception to the
principle that only final judgments terminating the case in the
trial court are appealable, and it has four requirements. As
summarized by Judge Wilner for the Court in Pittsburgh
Corning v. James, 353 Md. 657, 660-661, 728 A.2d 210,
211-212 (1999),
"Tw]e have made clear, time and again, as has the United
States Supreme Court, that the collateral order doctrine is a
very narrow exception to the general rule that appellate
review ordinarily must await the entry of a final judgment
disposing of all claims against all parties. It is applicable to a
‘small class' of cases in which the interlocutory order sought
to be reviewed (1) conclusively determines the disputed
question, (2) resolves an important issue, (3) resolves an
issue that is completely separate from the merits of the
action, and (4) would be effectively unreviewable if the
appeal had to await the entry of a final judgment. See Peat &
Co. v. Los Angeles Rams, 284 Md. 86, 92. 394 A.2d 801, 804
(1978); Clark v. Elza, 286 Md. 208, 213, 406 A.2d 922, 925
(1979); Shoemaker v. Smith, 353 Md. 143, 725 A.2d 549
(1999)."
See In re Franklin P., 366 Md. 306, 327, 783 A.2d 673, 686
(2001), where Judge Cathell for the Court recently
emphasized: "The four elements of the test are conjunctive in
nature *634 and in order for a prejudgment order to be
appealable and to fall within this exception to the ordinary
operation of the final judgment requirement, each of the four
elements must be met." See also Jackson v. State, 358 Md.
259, 266-267, 747 A.2d 1199, 1203 (2000).
Furthermore, in Maryland the four requirements of the
collateral order doctrine are very strictly applied, and appeals
under the doctrine may be entertained only in extraordinary
circumstances. Pittsburgh Corning y. James, supra, 353 Md.
at 666, 728 A.2d at 214; Shoemaker v. Smith, supra, 353 Md.
at 169, 725 A.2d at 563; Bunting v. State. supra, 312 Md. at
482, 540 A.2d at 809. On numerous occasions recently, we
have summarily reversed appellate judgments where appeals
were entertained under the collateral order doctrine, and we
ordered the dismissal of such appeals. See, e.g., Housing
Authority v. Smalls, 369 Md. 224. 798 A.2d 579 (2002);
Orthodox Jewish Council v. Abramson, 368 Md. 1, 791 A.2d
ee
129 (2002); Peck v. DiMario, 362 Md. 660, 766 A.2d 616
(2001); Bowers v. Callahan, 359 Md. 395, 754 A.2d 388
(2000); Dennis v. Folkenberg, 354 Md. 412, 731 A.2d 883
(1999): Samuels v. Tschechtelin, 353 Md. 508, 727 A.2d 929
(1999).
N
In the case at bar, the order for an examination was a
discovery order pursuant to the discovery rules. "This Court
** 59? has consistently held that discovery orders, being
interlocutory in nature, are not ordinarily appealable prior to
a final judgment terminating the case in the trial court."
Montgomery Co. v. Stevens, 337 Md. 471, 477, 654 A.2d
877. 880 (1995), and cases there cited. See also Goodwich v.
Nolan, 343 Md. 130, 141 n. 8, 680 A.2d 1040, 1045 n. 8
(1996), and cases there cited. As pointed out in Stevens;
Nolan, and numerous other cases, generally such orders do
not meet the requirements of the collateral order doctrine.
The Court of Special Appeals held that the discovery order in
the present case satisfied the four requirements of the
collateral order doctrine, namely that it (1) conclusively
determined the disputed question, (2) decided an important
issue, *635 (3) resolved an issue that was completely
separate from the merits of the action, and (4) would be
effectively unreviewable from an appeal from the entry of a
final judgment. We question whether the order for a medical
examination, simply in an effort to ascertain the actual facts
pertinent to the guardianship controversy, met either of the
first two requirements of the collateral order doctrine.
Assuming arguendo, however, that the order did conclusively
determine some disputed question and did resolve an
important issue, it clearly failed to meet the third and fourth
requirements.
The order for an examination was obviously not completely
separate from the merits of the controversy. On the contrary,
it was a typical discovery order aimed at ascertaining critical
facts upon which the outcome of the guardianship
controversy might depend. In fact, the Court of Special
Appeals implicitly recognized that the examination issue was
not separate from the merits, as the appellate court stated that
it was "[s]kipping [from the second] to the fourth collateral
order doctrine factor." The court's later discussion of the
examination order was entirely intertwined with its
discussion of who should be the guardian or co-guardians of
Sophia.
Turning to the fourth requirement of the collateral order
doctrine, the Court of Special Appeals held that the discovery
order would be effectively unreviewable on appeal because,
"[i]f Michael prevails in the guardianship case but cannot
take an interlocutory appeal of this order, Sophia's right
[asserted entirely by Michael] to refuse to submit to an
examination nevertheless will have been lost." [FN2] The
same, however, could be said with regard to any order for a
mental or physical examination under Rule 2-423. More
broadly, it could be said anytime a trial court grants a
discovery order. If an objecting defendant is ordered by a
trial court to submit *636 to a deposition, or answer
interrogatories, or produce documents, or admit certain facts,
and if that defendant ultimately prevails when the trial is
terminated, the defendant's asserted "right" to resist the
discovery on common law, Statutory, or constitutional
grounds will have been lost.
FN2. The Court of Special Appeals pointed out that, "[t]o be
sure, Sophia is not competent to make medical decisions for
herself. * * * Michael, as Sophia's health care agent, is
authorized to exercise Sophia's common law right to submit--
or not to submit--to medical treatment and testing."
The Court of Special Appeals' reasoning, with respect to the
fourth collateral order doctrine requirement, would make any
order granting discovery immediately appealable.
Nevertheless, we have made it clear that discovery orders are
only rarely appealable under the collateral order doctrine.
The only circumstance in which we have upheld the
appealability of interlocutory discovery orders involves a
singular **593 situation far removed from the facts of the
instant case. Montgomery Co. v. Stevens, supra, 337 Md.
471, 654 A.2d 877; Public Service Comm'n v. Patuxent
Valley, supra, 300 Md. 200, 477 A.2d 759.
This Court has indicated that the fourth requirement of the
collateral order doctrine, i.e., that an issue is not effectively
reviewable after a final judgment terminating the case, should
be deemed satisfied only in
"a very few ... extraordinary situations. Otherwise, ... there
would be a proliferation of appeals under the collateral order
doctrine. This would be flatly inconsistent with the long-
established and sound public policy against piecemeal
appeals." Bunting v. State, supra, 312 Md. at 482, 540 A.2d
at 809.
See also Pittsburgh Corning v. James, supra, 353 Md. at 666,
728 A.2d at 214; Shoemaker v. Smith, supra, 353 Md. at 169-
170, 725 A.2d at 563. The case at bar is not one of those
"extraordinary situations."
JUDGMENT OF THE COURT OF SPECIAL APPEALS
REVERSED, AND CASE REMANDED TO THAT COURT
WITH DIRECTIONS TO DISMISS THE APPEAL. COSTS IN
THIS COURT AND IN THE COURT OF SPECIAL
APPEALS TO BE PAID BY THE RESPONDENT.”
Opinion Of The Circuit Court For Anne Arundel County
(Cawood, J.).
“IN THE CIRCUIT COURT FOR ANNE ARUNDEL
COUNTY, MARYLAND
IN THE MATTER OF ”
SOPHIA E. FOLEY ”
FOR THE APPOINTMENT OF ’ Case No. C-
2000-62914
CO-GUARDIANS OF THE *
PERSON
OPINION
This long-running case presents difficult ques.ions
concerning Health Care Power of Attorney. We do not detail
the entire history of the matter, but a brief restatement is
necessary.
Sophia Foley has serious problems which clearly
indicate she is incompetent to carry out her normal functions.
She appointed her husband, Michael Foley, as her health care
agent, with broad powers, specifically mentioning this was
despite what her family members may want.
Her sisters, primarily Eugenia Berg, do not argue with
the regimen of treatment instituted by Ms. Foley’s doctors.
They previously moved for a guardianship, which we denied
after hearing, in great part because there was absolutely no
medical testimony that she was suffering from Lyme’s
Disease.
Before us at the present time is the Motion for a
Medical Examination of Ms. Foley filed by Ms. Berg. While
5 SURE
counsel for Ms. Berg indicates that there is a discovery issue,
it is really more than that. The whole gravamen of Ms.
Berg’s position is that Mr. Foley is not giving his wife the
proper tests primarily for Lyme’s Disease. While the
question of whether Ms. Foley would be willing to follow a
Lyme’s Disease regimen if it were recommended, or is being
replaced as health care guardian remains open. This is one
instance where the discovery mechanics is really part of this
issue.
Mr. Foley, if, of course, Ms. Foley’s spouse. In
addition, he has a health care directive as indicated. The
purpose of the directive is to permit him to manage her health
care, not the state or some other person. Our first question is
whether we can interfere with that directive.
In the abstract, the answer is we can. At one extreme,
if a health care provider refuses to provide any medication
for a person suffering from pneumonia, the state has the
right, in one form or the other, to step in. At the other
extreme, we have no right to interfere if the health care
directive prefers one medication over another, e.g. Cypro or
Levaquin as an antibiotic. This Court is not, and should not
become, if possible, a physician or physician substitute.
In this ase, we are sure that both sides love Ms.
Foley and what is best for her. We are also convinced that
there are differing medical positions, as expressed in the
affidavits and opinions on both sides. We also believe Mr.
Foley is trying to follow her doctor’s orders as best he can.
Where does that leave us?
From Mr. Foley’s point of view, it leaves us right
where we are. He wishes to take care of his wife as he feels
best, and undoubtedly resents her family telling him how to
do things in what are difficult times for everyone. One might
draw an analogy to the right of privacy which has greatly
narrowed in recent Supreme Court cases.
From Ms. Berg’s point of view, her sister in bad
medical condition which could be ameliorated somewhat by
proper testing and diagnosis. She sees the court as Parens
Patriate which must protect the right of Sophia Foley to live
as normal a life as possible.
From counsel’s point of view, Mr. F oley believe that
with the conflict in doctors make it is his decision who to
follow and he is doing that in good faith. Ms. Berg believes
this presents a factual conflict which the court could dismiss
out of hand. What worries the court is whether, under the
guise of whether a guardianship should supercede the health
care directives, we conduct a hearing with the court deciding
medical questions concerning Ms. Foley.’
From a practical point of view, a hearing involving all
the doctors testifying that we should, or should not, be
examined for Lyme’s disease, under the guise of whether a
guardianship is necessary, is counter-productive and terribly
expensive experience. Reviewing the tests requested by Ms.
Berg, we believe at this point there is enough evidence the
tests are desirable, and that they are not seriously invasive,
that they ought to be performed. We will order that, in the
order presented by Ms. Berg’s counsel. The results should be
presented to the court so we can see if further action is
necessary, after consultation with counsel.
Put another way, we believe there is enough on the
record at this point that a reasonable health care agent ought
to have the tests performed. We take no position, of course,
on what disease she has.
A second and minor issue is whether to make the
order in C-1997-37178 final. The cases are consolidated, and
we do not believe we should discuss the first case at this
time. That does not prevent us from relying upon what is
found there.
' Much the same way we are asked at the time to consider whether
someone is an appropriate parent because they do, or do not treat ADHD
in their children.
JAMES C. CAWOOD, JR., JUDGE”
Order Of The Circuit Court For Anne Arundel County
(Cawood, J.).
“IN THE MATTER OF ° IN THE
SOPHIA E. FOLEY ? CIRCUIT COURT
FOR THE APPOINTMENT * FOR
CO-GUARDIANS ” ANNE ARUNDEL
OF THE PERSON COUNTY
7 CASE NO.:C-2000-
62914 GS
* * * * * * * > * *
ORDER
UPON CONSIDERATION of the Motion for
Physical Examination of Person, filed by Eugenia Berg,
Petitioner, and for good cause shown, and upon notice to the
person to be examined and to all parties, and after a hearing
on oral arguments, it is this 20" day of May, 2001 by the
Circuit Court for Anne Arundel County,
ORDERED, that Mrs. Sophia E. Foley submit to a
non-invasive physical examination and testing at Deerfield
Senior Services, Adult Day Care Center, 2525 Riva Road,
Suite 100, Annapolis, Maryland 21401, on April 10, 2001, at
12:00 noon. The scope of the physical examination will be to
identify all of the medical issues involving Mrs. Foley’s
health care.
The examination and testing are expected to last 1.5 to 2
hours. The examination will be conducted by Ritchie C.
Shoemaker, M.D., in consultation with Zdzislaw Fiutowski,
M.D.,
and Anthony L. Lionetti, M.D.; and it is further
ORDERED, that the testing of Mrs. Foley consist of
the tests listed on the Testing
Protocol which is attached as Exhibit 1, is specifically
incorporated by reference herein, and is
made a part of this Order, and that the testing be conducted
under the supervision of Dr.
Shoemaker, in consultation with Dr. Fiutowski and Dr.
Lionetti; and it is further
ORDERED, that Petitioner provide to Mrs. Foley’s
husband and health care agent, Mr.
Michael Lee Foley, through his attorney, Michael W. Davis.
Esq., and to Mrs. Foley’s attorney, Carol S. Craig, Esq., and
to all interested persons a copy of the written report of Dr.
Shoemaker, stating the findings, conclusions, diagnoses,
prognoses, plan of treatment, and recommendations of Dr.
Shoemaker as a result of the examination and testing and
consultation, within three (3) working days after receipt by
Petitioner’s attorneys of said report; and it is further
ORDERED, that Petitioner pay the expense of the
examination and testing, and the professional services of Dr.
Shoemaker, Dr. Fiutowski, and Dr. Lionetti, and of the
_ phlebotomist and nurse who assist Dr. Shoemaker at the
examination and testing of Mrs. Foley at Deerfield Adult Day
Care Center; and it is further
ORDERED, that if Mr. Michael Lee Foley, husband
and health care agent of Mrs.
Foley, fails to make available Mrs. Foley for the examination
and testing ordered herein or
fails to provide Petitioner’s attorneys with reasonable notice
of Mrs. Foley’s inability to
appear for said examination and testing, resulting in
Petitioner’s incurring expenses, such expenses shall be paid
by Mr. Michael Lee Foley; and it is further
ORDERED, that Petitioner make available Dr.
Shoemaker, Dr. Fiutowski, ard Dr.
Lionetti upon reasonable notice for oral examinations during
discovery and for testimony at a
trial, if that becomes necessary.
Judge
JAMES C. CAWOOD, JR.
JUDGE, CIRCUIT COURT FOR
ANNE ARUNDEL COUNTY”
S.Ct. Rule 14.1(i)(ii)
Other Relevant Opinions
Opinion of the Court of Special Appeals of Maryland
IN RE: SOPHIA E. FOLEY .
UNREPORTED
IN THE COURT OF SPECIAL APPEALS OF
MARYLAND
No. 222, September Term, 2001
“On May 4, 2000, Eugenia Berg (“Eugenia”), the
appellee, petitioned for apnointment of co-guardians of the
person of her sister, Sophia E. Foley (“Sophia”), an adult, in
the Circuit Court for Anne Arundel County.” She then filed
in that suit a motion for physical examination of Sophia,
under Md. Rule 2-423. The court granted the motion, over
the objection of Michael L. Foley (‘Michael’), the appellant,
> Eugenia petitioned to be appointed co-guardian with one of her sisters,
Stephanie Pratowski.
who is Sophia’s husband and her appointed health care agent
under the Maryland Health Care Decision Act (““HCDA”),
Md. Code (1998 Repl. Vol. 2000 Supp.), section 5-601
through 5-616 of the Health General Article (“HG”).
Michael noted this interlocutory appeal from the
court’s order, posing two questions for review, which we
have reworded and combined as follows:
Did the circuit court abuse its discretion in granting
Eugenia’s motion for physical examination and
testing of Sophia, over the objection of Sophia’s
appointed health care agent?°
For the following reasons, we shall vacate the order
of the circuit court.
FACTS AND PROCEEDINGS
Sophia is sixty-one years old. She and Michael have
been married for 32 year. They have one child Kristina, who
is sixteen years old.
On June 25, 1992, Sophia executed a health care
power of attorney appointing Michael her health care agent
under § 13-601 of the Estates & Trusts Article of the
Maryland Code.* Under the later-enacted HCDA, a validly
* The questions posed by Michael were:
I. Does the trial court have the authority to superintend and direct
the care of Mrs. Foley, a disabled person who has appointed a
health care agent under the Health Care Decisions Act.
II. Did the trial court exercise in reasonable and sound manner its
discretion for good cause shown in accordance with Rule 2-423
in ordering that blood specimens and urine specimens be
collected from Mrs. Foley?
* At the time Sophia executed the health care power of attorney, § 13-601
of the Estates and Trusts Article (“ET”) provided the only statutory
mechanism by which a principal could enable an agent to carry out
specific directives with respect to the principal’s medical treatment,
including the withholding or withdrawing of artificially administered
executed health care power of attorney made before October
1, 1993, shall be given effect, “even if not executed in
accordance with the terms of th[e] article.” HG § 5-616.
Section 5-601(b)(a) of the HCDA provides that a health care
power of attorney such as the one in this case is an “advance
directive,” and we shall refer to it as such.
Sophia’s advance directive gives Michael the sole
power and discretion to make health care decisions for her, in
the event she is incompetent to make them herself. Michael
is to do so in accordance with Sophia’s expressed wishes or,
if she did not make her wishes known, in accordance with
his assessment of what would be in her best interest. The
advance directive names Peter Goldsmith, a family friend,
the contingent successor health care agent, in the event
Michael is no longer able to perform in that capacity, and
further provides that Sophia’s wishes should be followed by
her health care agent regardless of “any contrary feelings or
beliefs of members of her family, friends or guardians.”
About four years before she executed her advance
directive, Sophia started to experience some short term
memory loss that interfered with her ability to perform her
job. Sophia’s memory deficits progressed over the years. In
January of 1992, one of her primary care doctors, Larry W.
sustenance, under specified circumstances in which the principal was
disabled or incompetent. 73 Op. Att’y Gen. 162, 184 (October 17, 1988).
In 1993, the General Assembly amended ET § 13-601, among other
portions of the Maryland Code, to reflect the passage of the HCDA.
Section 13-601(e), in part, now provides:
(1) This section does not apply to an instrument or portion of an
instrument that is an advance directive appointing a health care
agent under Title 5, subtitle 6 of the Health -General Article.
(2) An instrument or portion of an instrument that is an advance
directive appointing a health care agent is subject to the
provisions of Title 5, Subtitle 6 of the Health-General Article.
ET § 13-601 (e) (1998 Repl. Vol., 2000 Supp.).
Blum, M.D., diagnosed her with dementia, most likely early
Alzheimer’s disease. In the years thereafter, Sophia’s
dementia continued to progress. By the time of the events
relevant to his case, it was so advanced that she was
conscious but completely unable to communicate. It is
undisputed that when Sophia executed her advance directive,
she was mentally competent, but she has not been mentally
competent since the Fall of 1993.
In May 1997, Eugenia filed a guardianship petition in
the Circuit Court for Anne Arundel County alleging that
Sophia’s dementia was caused by Lyme disease and the
health care she was receiving under Michael’s direction was
inadequate, because Michael either was failing or refusing to
have her tested for Lyme disease. Soon after the
guardianship petition was filed, Michael had Sophia tested
for Lyme disease, under the direction of Dr. Blum and
pursuant to the testing protocol of the Centers for Disease
Control and Prevention (“CDC”). The three tests
administered to Sophia under that protocol were: (1) the
“ELISA” or “EIA” blood screening test; (2) the IgG Western
blot blood test; and (3) the IgM Western blot blood test. The
test results showed that Sophia was not infected with active
Lyme disease.
In November 1997, the circuit court held an
evidentiary hearing on the guardianship petition. Dr. Blum
testified, by videotape, about the results of the Lyme disease
tests that had been administered to Sophia. He opined that
Sophia’s dementia was most likely of the Alzheimer’s type.
At the conclusion of the hearing, the court dismissed the
guardianship petition, finding in part that Sophia’s advance
directive was legally valid and there was no evidence that the
health care she was receiving was inadequate. The court
concluded that there was no reason to appoint a guardian of
the person for Sophia.
About two and a half years later, on May 4, 2000,
Eugenia filed a new petition, again seeking appointment as
co-guardian of the person of Sophia. She alleged that Sophia
is a person under a disability, under Md. Code (1998 Repl.
Vol., 2000 Supp.), section 13-101(e) of the Estates and Trusts
Article (“ET”), and identified nine “interested persons,”
under ET section 13-101(j) — herself, Sophia, Michael,
Kristina, three other sisters of Sophia, Sophia’s father and the
director of the Anne Arundel County Department of Social
Services. Finally, Eugenia alleged that Michael had failed to
pay for Sophia’s adult day care at the Deerfield Adult Day
Care Center, even though she (Eugenia) had provided him
money for that purpose.”
Michael filed an answer to the petition opposing it
and raising numerous affirmative defenses.
On November 16, 2000, Eugenia filed a motion for
physical examination and testing of Sophia, under Md. Rule
2-423. In support, Eugenia stated that an examination was
needed to diagnose whether Sophia has Lyme disease or
“other medical conditions” that are causing her dementia and
for which she is not being treated. She further stated that
because Michael was maintaining that the cause of Sophia’s
dementia is uncertain, but likely is Alzheimer’s disease,
while Eugenia was maintaining that the cause of Sophia’s
dementia needed to be determined, so it could be treated,
Sophia’s physical and mental conditions were “in
controversy.” Eugenia added that she “desire[d] independent
> ET section 13-705(c)(2) provides that a petition for guardianship of the
person of a disabled person shall include signed and verified certificates
of competency from two licensed physicians or one licensed physician
and one licensed psychologist who have examined and evaluated the
disabled person. Likewise, Md. Rule 10-202 (a)(l) requires that the
applicant seeking a guardianship of the person of a disabled person attach
to his petition a statement of “the physician’s or psychologist’s opinion as
to: (1) the cause, nature, extent, and probable duration of the disability,
(2) whether the person requires institutional care, and (3) whether the
person has sufficient mental capacity to understand the nature of and
consent to the appointment of a guardian.” No such certificates and
statement were filed in this case.
verification of [Sophia’s] physical and mental conditions.”
Finally, Eugenia alleged that the Lyme disease tests
performed on Sophia in 1997 were not clinically sensitive
enough, or were performed too long after exposure, to detect
the presence of Borrelia burgorferi, the agent that causes
Lyme disease.
Eugenia’s motion for physical examination and
testing sought to have Sophia retested for Lyme disease
under a protocol prescribed by Eugenia’s medical experts,
Ritchie S. Shoemaker, M.D., and Anthony L. Lionetti, M.D.
The testing protocol called for the use of polymerase chain
reaction (“PCR”) DNA testing and for repeating the Western
blot blood tests performed in May 1997. The protocol would
require that a series of ten urine specimens and a single blood
specimen be taken from Sophia over a ten-week period.
Michael filed an opposition to the motion for physical
examination and testing. Eugenia’s motion, Michael’s
opposition, and supplemental memoranda filed by each were
supported by affidavits of their respective expert witnesses.
Drs. Shoemaker and Lionetti, and Zdzislaw Fiutowski, M.D.,
a general practitioner who had examined Sophia in 1994 and
1995, in Michigan, submitted affidavits in support of
Eugenia’s motion. They opined, in essence, that symptoms
of Lyme disease and symptoms of Alzheimer’s disease can
be similar; that advanced testing techniques such as PCR
DNA testing are more effective in diagnosing Lyme disease
than are the tests Sophia underwent 1997; and that, if Sophia
were found to be infected by the agent that causes Lyme
disease, she could be treated for it.
Dr. Fiutowski did not opine about whether Sophia’s
dementia would lessen or improve if she were treated for
Lyme disease. Dr. Lionetti addressed that topic in his
affidavit, saying only, “One would hope to see improvement
in [Sophia’s] neuropsychological status within three months
to a year of successful therapy.” He acknowledged, however,
that therapy is not always successful, i.e., that it does not
always result in the patient no longer being infected with the
agent that causes Lyme disease. In his affidavit, Dr.
Shoemaker observed: “What benefit will come to Mrs. Foley
is she is tested for Lyme? I have nothing to correct the
progressive cetebral atrophy of Mrs. Foley ... Mrs. Foley
won’t regrow her atrophic brain. Mr. Foley won’t have his
wife back to care for his daughter.”
Michael submitted affidavits and/or deposition
testimony by Dr. Blum, George C. Samaras, M.D. (another of
Sophia’s treating doctors), and Andrew R. Pachner, M.D.
Dr. Samaras attested not only that Sophia had tested negative
for Lyme disease under the CDC protocol administered in
1997 but also that in the 8 years she had been his patient, she
never had presented any clinical symptoms of Lyme disease.
Dr. Samaras opined that, based on his experience in treating
Sophia, she would need to be sedated even to draw a blood
sample.
In Dr. Blum’s deposition testimony, from 1997, he
opined that Sophia has Alzheimer’s disease, that she does not
have Lyme disease, that her prognosis is poor, and that
Alzheimer’s disease only can be definitively diagnosed on
autopsy. Dr. Pachner opined that to a reasonable degree of
medical certainty, and based on the tests administered in
1997, Sophia does not have Lyme disease and Lyme disease
“can be ruled out as a cause of [her] dementia.”
On January 10 and March 14, 2001, the court held a
non-evidentiary hearing on the motion for physical
examination and testing. Thereafter, on May 20, 2001, it
issued a memorandum opinion and order granting the motion.
The circuit court commented in its opinion that the issue
before it was “more than [a discovery issue],” and the “whole
gravamen of [Eugenia’s] position is that [Michael] is not
giving [Sophia] the proper tests primarily for Lyme’s [sic] -
Disease.” The court went on to conclude that the mere fact
that Sophia appointed Michael her health care agent, and that
Sophia is incompetent, does not mean that the court has no
right to “step in.” It appears that the court was not limiting
_its ruling on this point to whether it could order, as part of the
discovery in the guardianship case, that Sophia undergo a
mental or physical examination.
The court further commented, “We are also
convinced that there are differing medical positions, as
expressed in the affidavits and opinions on both sides. We
also believe [Michael] is trying to follow [Sophia’s] doctor’s
orders, as best he can. Where does that leave us?” The
court’s opinion then continues as follows:
From Mr. Foley’s point of view, it leaves us
right where we are. He wishes
to take care of his wife as he feels best, and
undoubtedly resents her family telling him how to do
things in what are difficult times for everyone. One
might draw an analogy to the right of privacy which
has greatly narrowed in recent Supreme Court cases.
From Ms. Berg’s point of view, her sister [is]
in bad medical condition which could be ameliorated
somewhat by proper testing and diagnosis. She sees
the court as parens Patriate which must protect the
right of Sophia Foley to live as normal a life as
possible.
From counsel’s point of view, Mr. Foley
believe[s] that with the conflict in doctors make it is
his decision who to follow and he is doing that in
good faith. Ms. Berg believe this presents a factual
conflict which the court could dismiss out of hand.
What worries the court is whether, under the guise of
whether a guardianship should supercede [sic] the
health care directives, we conduct a hearing with the
court deciding medical questions concerning Ms.
Foley.
From a practical point of view, a hearing
involving all the doctors testifying that we should, or
should not, be examined for Lyme’s [sic] disease,
under the guise of whether a guardianship is
necessary, is counter-productive and _ terribly
expensive experience. Reviewing the tests requested
by Ms. Berg, we believe at this point there is enough
evidence the tests are desirable, and that they are not
seriously invasive, that they ought to be performed.
We will order that, in the order presented by Ms.
Berg’s counsel. The results should be presented to
the court so we can see if further action is necessary,
after consultation with counsel.
Put another way, we believe there is enough
on the record at this point that a reasonable health
care agent ought to have the tests performed. We take
no position, of course, on what disease she has.
(Footnote omitted.)
Michael filed a motion for reconsideration, which the
court denied on April 2, 2001. He then filed a notice of
appeal.
DISCUSSION
As we have explained, the order for physical
examination that is being challenged in this appeal was
entered by the circuit court in a guardianship of a disabled
person proceeding in which it was undisputed that the
disabled person -- Sophia -- was and remains incompetent.
Guardianship proceedings involving the disabled are
governed by ET sections 13-101 through 13-107, ET sections
13-701 through 13-713, and Chapters 100 and 200 of Title 10
of the Maryland Rules. Under ET section 13-704, the circuit
court has the authority to “‘superintend and direct the care of a
disabled person, appoint a guardian of the person, and pass
orders and decrees respecting the person as seems proper.”
The appointment of a guardian “rests solely in the discretion
of the equity court and the administering of the office as it
pertains to both the person and property of the ward and is
subject to judicial control.” Kircherer v. Kircherer, 285 Md.
114, 119 (1979).
ET section 13-705 establishes the standard for
appointing a guardian of the person of a disabled person. It
states that a guardian
shall be appointed if the court determines from
clear and convincing evidence that [the
disabled] person lacks sufficient
understanding or capacity to make or
communicate responsible decisions
concerning his person, including provisions
for health care, food, clothing, or shelter,
because of any mental disability, disease,
habitual drunkenness, or addition to drugs,
and that no less restrictive form of
intervention is available which is consistent
with the person’s welfare and safety.
ET § 13-705(b) (emphasis added).
Md. Rule 10-102(b), which pertains to guardianship
proceedings, provides that “[a]ny interested person may
obtain discovery in a contested matter pursuant to Title 2,
Chapter 400 of these Rules, unless otherwise ordered by the
court. Except as otherwise provided in this Title, a court may
apply any of the rules in Title 2 as appropriate.” An
“interested person” is defined in Md. Rule 10-103(f) as “the
disabled person; the guardian and heirs of that person; a
governmental agency paying benefits to that person or a
person or agency eligible to serve as guardian of the person
under [ET § 13-707]; the Department of Veterans Affairs: ...
and any other person designated by the court.”
Md. Rule 2-423 govern motions for physical and
mental examinations in civil cases. It states, in relevant part:
When the mental or physical condition
or characteristic of a party or of a person in
the custody or under the legal control of a
party is in controversy, the court may order
the party to submit to a mental or physical
examination by a suitably licensed or certified
examiner or to produce for examination the
person in the custody or under the legal
control of the party. The order may be entered
only on motion for good cause shown and
upon notice to the person to be examined and
to all parties. ...
The circuit court has broad discretion in ruling upon a
motion for physical or mental examination under Md. Rule 2-
423. See Hutzel v. Boyer, 252 Md. 227, 236 (1969); Roberts
v. Roberts, 198 Md. 229, 303 (1951); Wilson v. N.B.S., Inc.,
130 Md. App. 430, 447-48 (2000). Nevertheless, such a
motion only may be granted if the mental or physical
condition of the party to be examined (or the person under
this legal control or custody) is “in controversy” and only
upon a showing of “good cause” for the examination. See
Hutzell v. Boyer, supra, 252 Md. at 236 (“[t]he right to a
mental or physical examination provided for under [this
Rule] is a matter to be granted within the sound discretion of
the court ‘for good cause shown.””’).
The standard of review of a circuit court’s decision to
order a physical or mental examination under Md. Rule 2-
423 is whether the court abused its discretion. North River
Insurance Co. v. Mayor & City Council of Baltimore, 343
Md. 34, 47 (1996) (circuit court rulings on discovery “will be
disturbed on appellate review only if there is an abuse of
discretion”), Turner v. Whisted, 327 Md. 106, 114 (1992);
United Railways & Electric Co. v. Cloman, 107 Md. 681, 690
(1908) (“the general rule is that [the physical examination of
a plaintiff in a personal injury action] cannot be demanded as
a matter of right by a defendant, but the application is
addressed to a sound discretion of the trial Court, which will
not be interfered with by an appellate Court unless such
discretion was manifestly abused”).
APPEALABILITY
Before addressing the merits of this appeal, we first
must consider whether we have jurisdiction to hear it, given
that it is taken from an interlocutory order.
Md. Code (1998 Repl. Vol., 2000 Supp.) section 12-
301 of the Courts and Judicial Proceedings Article (“CJ”
provides that a party may appeal to this Court from a “final
judgment.” A final judgment is “a judgment, decree,
sentence, order, determination, decision, or other action by a
court, including an orphans’ court, from which an appeal,
application for leave to appeal, or petition for certiorari may |
be taken.” CJ § 12-101(f); Baltimore City Dept. of Social |
- Services (“DSS”) v. Stein, 328 Md. 1, 9 (1992).
It is well established that “the underlying policy of the
final judgment rule is that piecemeal appeals are disfavored.”
Cant v. Bartlett, 292 Md. 611, 614 (1982). As this Court has
recognized, “it is ultimately for [the Court of Appeals] to
decide which judgments or orders are final and therefore
appealable under [CJ] section 12-301.” Ashcraft & Gerel v.
Shaw, 126 Md. App. 325, 340 (1999) (holding that an order
requiring a party to disclose documents in its possession is
presently appealable under a final judgment analysis, or in
the alternative, as a collateral order) (quoting Peat, Marwick, !
Mitchell & Co. v. Los Angeles Ram Football Co., 284 Md.
86, 91 (1978)). |
Appeals from some interlocutory orders are permitted
under CJ § 12-303. In addition, the Court of Appeals has
adopted the “collateral order doctrine,” as announced in
Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541 (1949),
which “treats as final and appealable a limited class of orders
which do not terminate litigation in the trial court.” DDS v.
Stein, supra, 328 Md. at 10 (quoting Public Service Comm’n
eee ee ee eee
A 26
i
v. Patuxent Valley, 300 Md. 200, 206 (1984)). For an
otherwise non-final order to qualify as final and appealable
under the collateral order doctrine, “(1) [the order] must
conclusively determine the disputed question; (2) it must
resolve an important issue; (3) it must be completely separate
from the merits of the action; and (4) it must be effectively
unreviewable on appeal from a final judgment.” Ashcraft &
Gerel v. Shaw, supra, 126 Md. App. at 341 (quoting
Montgomery County v. Stevens, 337 Md. 471, 477 (1995));
see also Town of Chesapeake Beach v. Pessoa Constr. Co.,
Inc., 330 Md. 744, 755 (1993).
Discovery orders such as an order granting a motion
for physical or mental examination are interlocutory and thus
are not appealable, under the final judgment rule. Public
Service Comm'n v. Patuxent Valley, supra, 300 Md. at 207;
Sigma Repro. Health Center v. State, 297 Md. 660, 675
(1983). In addition, discovery orders are not included in the
list of interlocutory orders that may be appealed under CJ §
12-303. A discovery order may be appealable, however,
under the collateral order doctrine. In our view, the May 20,
2001 order in this case is such an order.
First, the order on its face conclusively determines
that Sophia must undergo a physical examination and testing,
despite her health care agent’s decision that that is not in her
best interest.
Second, the issue decided in the order is important.
Within the meaning of the collateral order doctrine, an issue
is “important” if “the interests that would potentially go
unprotected without immediate appellate review . . . are
significant relative to the efficiency interests sought to be
advanced by adherence to the final judgment rule.” Ashcraft
& Gerel v. Shaw, supra, 126 Md. App. at 345 (quoting /n re
Ford Motor Co., 110 F.3d 954, 959 (3d Cir. 1997)). Thus,
this factor requires us to balance the relative interests,
“namely, the inconvenience and costs of piecemeal review on
the one hand and the danger of denying justice by delay on
the other.” /d. (internal citations omitted).
The interest involved in this case that potentially
would go unprotected if an appeal from the circuit court’s
May 20, 2001 order were not permitted at this juncture is
Sophia’s right, under Maryland law, to protect her physical
integrity from unwanted intrusion. Maryland recognizes the
doctrine of informed consent, which holds that “a competent
adult has the right to refuse medical treatment and to
withdraw medical treatment once begun.” Wright v. Johns
Hopkins Health Systems Corp., 353 Md. 568, 572 (1999).
“The fountainhead of the doctrine [of informed consent] is
the patient’s right to exercise control over his own body, . . .
by deciding for himself whether or not to submit to the
particular therapy.” Mack v. Mack, 329 Md. 188, 210 (1993)
(quoting Sard v. Hardy, 281 Md. 432, 439 (1977)). See also
Cruzan v. Director, Missouri Department of Health, 497 U.S.
261, 281 (1990) (suggesting that the right of a competent
person to refuse medical treatment is a constitutionally
protected liberty interest, although such a right must be
balanced against the State’s interest in protecting human life).
To be sure, Sophia is not competent to make medical
decisions for herself. Her common law right to refuse
medical treatment is nevertheless implicated because before
she became incompetent, she executed an advance directive
appointing a health care agent to make medical decisions for
her in the event of her incompetency. Under the HCDA,
Michael, as Sophia’s health care agent, is authorized to
exercise Sophia’s common law right to submit — or not to
submit — to medical treatment and testing.
Whether the circuit court properly ordered Sophia to
submit to medical testing and evaluation, over the objection
of her health care agent, is important in this case because it
has arisen in the context of a petition for guardianship of a
disabled person.
Motions for physical or mental examinations under
Mad. Rule 2-423 most frequently are made, and hence orders
are granted, in civil personal injury actions. In those cases,
the subject of the order usually is a plaintiff whose physical
or mental condition not only is at issue but was placed at
issue by his own decision to bring suit. See Schlagenhauf v.
Holder, 379 U.S. 104, 118 (1969) (in addressing the standard
of proof applicable to motions for physical or mental
examination under Fed. R. Civ. Proc. 35(a), the Court noted
that ‘a plaintiff in a negligence action who asserts mental or
physical injury, ... places that mental or physical injury
clearly in controversy and provides the defendant with good
cause for an examination to determine the existence and
extent of such an asserted injury.”°). Likewise, in some civil
cases a defendant will raise a defense that puts his physical or
mental condition at issue. See Schlagenhauf v. Holder,
supra, 379 U.S. at 118 (commenting that the “in controversy”
and “good cause” standards for an order directing a physical
or mental examination under Fed. R. Civ. Proc. 35(a) may be
established when a party “asserts his mental or physical
condition as a defense to a claim, such as, for example, where
insanity is asserted as a defense to a divorce action.”). In
those situations, in the final analysis, the subject of the order
retains control over his physical integrity. He may choose
not to submit to the testing or examination, and instead to
> Fed. R. Civ. Proc. 35(a) provides, in pertinent part:
(a) Order for Examination. When the mental or physical condition
(including the blood group) of a party or of a person in the custody or
under the legal control of a party, is in controversy, the court in which the
action is pending may order the party to submit to a physical or mental
examination by a suitably licensed or certified examiner or to produce for
examination the person in the party’s custody or legal control. The order
may be made only on motion for good cause shown and upon notice to
the person to be examined and to all parties and shall specify the time,
place, manner, conditions, and scope of the examination and the person or
persons by whom it is to be made.
bear the consequences of his action — including the ultimate
sanction of dismissal of a claim or of being barred from
raising a defense. See Wilson v. N.B.S., Inc., supra, 130 Md.
App. at 447-48.
When a physical or mental examination is sought in a
guardianship of the person case, in contrast, “the proposed
ward, the object of the examination, has not voluntarily
submitted [his] condition to the court,” for determination. Jn
re Guardianship of Johnson, 519 N.E.2d 655, 659 (Ohio Ct.
App. 1987). Thus, in this case, the proceeding was not
brought by Sophia, Michael, or anyone acting for them or on
their behalves; and they have no alternative (other than one
that would subject Michael to being held in contempt) than to
comply with the order, and forfeit the right at issue. In this
circumstance, consideration of finality, i.e., avoiding the
inconvenience and cost of piecemeal review, are outweighed
by the real prospect that delaying review, and thereby
subjecting Sophia to a physical examination over the
objection of her health care agent and before the propriety of
the court’s ruling can be addressed, would work an injustice.
Skipping to the fourth collateral order doctrine factor,
the right implicated here is time-bound, that is, effectively
non-reviewable on appeal from a final judgment. As the trial
court itself recognized, Eugenia’s motion is not directed to
the issue of competency, which is undisputed. Rather, it is
primarily directed at obtaining, through discovery, a vehicle
by which to make the very medical decisions for Sophia that
a) Sophia sought to protect herself from family members
other than Michael making; and b) Eugenia would not be in a
position to make unless and until she proved, inter alia, that
Michael was not acting in a manner consistent with Sophia’s
welfare and safety and that she (Eugenia) is qualified and
occupies a statutory priority that would permit the court to
allow her to make those decisions. Because there is nothing
to prohibit Eugenia from filing repeated guardianship
petitions, even if she does not prevail in any of them, she can
Sn ee ena ae Pe =
obtain by means of a discovery order the same result that she
seeks by filing her petitions: to control whether and to what
extent Sophia is subjected to medical tests and examinations
about potential causes of her dementia. If Michael prevails in
the guardianship case but cannot take an interlocutory appeal
of this order, Sophia’s right to refuse to submit to an
examination nevertheless will have been lost.
As noted, the third requirement of the collateral order
doctrine is that the order be completely separate from the
merits of the action. Again, the issue of competency --
whether Sophia lacks sufficient understanding or capacity to
make or communicate responsible decisions about her person
-- is not in controversy. The only contested issue, therefore,
is whether no less restrictive form of intervention other than
the appointment of a guardian of Sophia’s person is
available, “which is consistent with [her] welfare and safety.”
ET § 13 705(b). Thus, if Michael’s tending to Sophia and
making health care decisions on her behalf under the
authority conferred on him by the advance directive, being a
less restrictive means of intervention than establishing a
guardianship, is consistent with Sophia’s welfare and safety,
the guardianship petition must be denied. For the reasons we
shall explain, that issue is capable of being resolved without
the necessity of an order for physical or mental examination
of Sophia. Accordingly, in this situation, the order is
separate from the merits of the action.
ANALYSIS
As we have explained, the circuit court has discretion
to grant a motion for physical or mental examination, under
Md. Rule 2-423, when the physical or mental condition or
characteristic of the person sought to be examined is “in
controversy” and the moving party has shown “good cause”
for the examination.
In this context, the phrase “in controversy” has been
interpreted to mean that the physical or mental condition of
the individual sought to be examined is “directly involved in
some material element of the cause of action or defense.” Jn
re Guardianship of Johnson, supra, 519 N.E. 2d at 659
(quoting Paul v. Paul, 366 So. 2d 853, 853 (Fla. Dist. Ct.
App. 3d Dist. 1979)).’ See also Roberts v. Roberts, supra,
198 Md. at 303 (holding that the circuit court is vested with
discretion to decide whether a party’s mental condition is
material to the issues in the case). The “good cause”
requirement has been interpreted to mean that the physical or
mental state of the party, “even though in controversy, could
not adequately be evidenced without assistance of expert
medical testimony.” Jn re: Guardianship of Johnson, supra,
519 N.E.2d at 659; Paul v. Paul, supra, 366 So. 2d at 853. In
deciding whether “good cause” exists, the court should
consider and balance the competing interests of the parties.
See Turner v. Whisted, supra, 327 Md. at 115-16 (holding
that in deciding whether there was “good cause” to order a
party to submit to a blood test under Md. Rule 2-423 in a
case brought under the legitimation statute at ET § 1-208, the
circuit court was to consider, inter alia, privacy interests of
the parties and the best interest of the child).
We note at the outset that Michael’s active
engagement as Sophia’s appointed health care agent did not
diminish or otherwise change the circuit court’s authority to
’The Ohio Civ. R. 35(A), which is essentially the same as Md.
Rule 2-423 provides:
Order to examination. When the mental or physical
condition (including the blood group) of a party, or of a
person in the custody or under the legal control of a
party, is in controversy, the court in which the action is
~pending may order the party to submit himself to a
physical or mental examination or to produce for such
examination the person in the party’s custody or legal
control. The order may be made only on motion for
good cause shown and upon notice to the person to be
examined and to all parties and must specify the time,
place, manner, conditions, and scope of the examination
and the person or persons by whom it is to be made.
a A el at a al lh ces we Was
order a physical or mental examination of Sophia, under Md.
Rule 2-423. To be sure, an analysis of whether a party
seeking an order for examination has satisfied the “in
controversy” and “good cause” elements of the Rule must
take into account the nature of the action and the dispute
among the parties. Thus, the nature of this case, as a
guardianship of the person proceeding, and the fact that the
proposed ward has a duly appointed health care agent who is
making the decisions about her health care, were relevant to
whether Eugenia had satisfied the “in controversy” and
“good cause” elements of the Rule. Yet, that did not mean
the circuit court was bound by Michael’s health care
decisions for Sophia in ruling on the motion. Just as the
circuit court can order a competent party to submit to a
physical or mental examination, under Md. Rule 2-423,
notwithstanding the party’s preference to the contrary, the
circuit court can order an incompetent party to submit to a
physical or mental examination, notwithstanding the party’s
health care agent’s opposition.
As noted, the threshold question for the circuit court
to decide in ruling on a Md. Rule 2-423 motion for physical
or mental examination is whether a condition or
characteristic of the person to be examined is “in
controversy” in the case. The answer to that question
involves a materiality assessment that depends upon the
issues, elements, and disputed facts in the case. Whether a
party’s condition or characteristic is in controversy is a
function of what kind of case has been brought, what issues
or elements need to be proven (or disproven), which of those
issues or elements are disputed, and the facts, agreed and
disputed, that relate to those issues and elements.
The instant case is unlike many guardianship of the
person cases in that the parties agree that the person alleged
to be disabled lacks sufficient capacity to make or
communicate responsible decisions for herself about her
person, including about her health care. The affidavits
submitted by the expert witnesses for both Eugenia and
Michael respecting the motion for examination reflect that
there is no disagreement that Sophia has dementia and that
she is unable to make any decisions about her health care, or
about anything else. Thus, of the two issues for the circuit
court to address in ruling on whether grounds exist for the ;
appointment of a guardian, under ET 13-705(b), one issue is |
not in dispute.
To revolve the guardianship proceeding therefore, the
only disputed issue before the circuit court is whether a less
restrictive form of intervention than a guardianship is
available to Sophia and is consistent with her welfare and —
safety. The appointment of a guardian of the person by the
court to make decisions about Sophia’s health care is a more
restrictive means of intervention than is an appointed health
care agent who makes those decisions not under the
supervision of the court, but under the authority granted |
under an advance directive; that is especially true when the
appointed health care agent is the incompetent person’s |
spouse. Thus, put another way, the ultimate issue before the
circuit court in this case is whether in functioning as Sophia’s
health care agent Michael has taken actions that have been
inconsistent with her welfare and safety. For Sophia’s
physical condition to be “in controversy, “within the meaning
of Md. Rule 2-423, her condition must be directly material to
~ that issue.
When the circuit court ruled on the motion for
physical examination, the undisputed facts before it
established the following. In 1997, the doctors who have
been treating Sophia from the time she began to experience
dementia, tested her for Lyme disease, using a CDC testing
protocol. The test results showed that Sophia was not |
infected with the agent that causes that disease. Based on
those test results and their clinical assessments of Sophia
over the years in which they had been treating her, those
doctors formed the medical opinion that Sophia does not
A 34
have Lyme disease. They also formed the medical opinion
that her dementia is in all likelihood Alzheimer’s disease.
Sophia’s doctors have made treatment recommendations
based on their medical opinion that she has Alzheimer’s
disease. ‘ Michael has_ followed the treatment
recommendations made for Sophia by her doctors in making
decisions about the care Sophia should receive. Indeed, the
trial court found as much when it remarked: “We also
believe Mr. Foley is trying to follow [Sophia’s] doctor’s
orders as best he can.”
Under those circumstances, which are undisputed, it
was trelevant to ruling on the motion for physical
examination of Sophia that Eugenia produced experts of her
own who believe the CDC protocol for testing Sophia for
Lyme disease is deficient and advocate testing Sophia for
Lyme disease under another protocol. The fact that there are
experts who say they would take a different treatment
approach if they -- instead of Drs. Blum and Samaras -- were
caring for Sophia had no bearing on the single, critical, issue
in this case: whether Michael had been acting contrary to
Sophia’s welfare and safety, so that a more restrictive means
of intervention, i.e., a guardianship, was necessary to address
her needs.
Eugenia presented no evidence to show that Sophia’s
treating doctors are unqualified to be caring for her, that
Michael had any reason to believe that they are not so
qualified, or that he had any reason not to follow their
treatment advice. Thus, even if the testing recommended by
Eugenia’s experts were performed and were to produce
evidence that Sophia is infected by Lyme disease, that
evidence would not be probative of whether Michael acted
contrary to Sophia’s welfare and safety in following a
treatment regimen recommended by her treating doctors.
Accordingly, when properly assessed in context, Sophia’s
physical condition was not in controversy, under Md. Rule 2-
423, and the motion for physical examination should have
been denied on that basis.
For the same reasons, there was not -- and could not
have been -- “good cause” for the requested examination and
testing. The evidence that might be generated by the
proposed examination and testing not only would not be
necessary to a decision on the ultimate issue in the case, it
would not be probative of it.
The circuit court did not consider either the issues of
“in controversy” or “good cause” when it ruled on the motion
for physical examination. Instead, the court decided the
motion by assessing whether a reasonable health care agent
ought to have Sophia tested using the protocol recommended
by Eugenia’s experts. As we have explained, that was not the
proper standard by which to rule on the motion.
We shall vacate the circuit court’s May 20, 2001
order for physical examination and remand the case to the
circuit court for further proceedings not inconsistent with this
opinion. In so doing, we note that notwithstanding the
court’s decision in 1997, that Eugenia was an “interested
person” for purposes of bringing that guardianship of the
person action, that determination did not decide that issue for
all time. A person filing a guardianship petition must qualify
as an interested person when the petition was filed, under
Md. Rule 10-201(a); and under Md. Rule 10-102(b),
discovery in a guardianship of the person case only may be
obtained by an interested person. In this case, there has never
been a determination that Eugenia is an interested person,
and her status as an interested person vel non is questionable.
The circuit court should address that issue as a threshold
matter on remand.
ORDER VACATED. COSTS TO BE PAID BY THE
APPELLEE.”
S.Ct. Rule 14.1(i)(id)
Order on Rehearing or Reconsideration
Court of Appeals of Maryland’s
Order Denying Motion to Reconsider
“IN RE: SOPHIA E. FOLEY * In the
™ Court of Appeals
° o f Maryland
ss No 123
. September Term, 2001
ORDER
The Court having considered the Respondent’s
Motion to Reconsider filed by Michael L. Foley and the
Motion to Reconsider filed by Court-Appointed Counsel,
Carol S. Craig, in the above-captioned case, it is this 6"" day
of May, 2003,
ORDERED, by the Court of Appeals of Maryland,
that the motions be, and they are hereby, DENIED.
/s/ Robert M. Bell
Chief Judge
S.Ct. Rule 14.1(i)(iv)
Verbatim Constitutional Provisions, Treaties,
Statutes, Ordinances, And Regulations Involved In Case
U.S. Const. amend. XIV, §1.
“AMENDMENT XIV. CITIZENSHIP; PRIVILEGES AND
IMMUNITIES; DUE PROCESS; EQUAL PROTECTION;
* OK OK
“Section 1. All persons born or naturalized in the United
States, and subject to the jurisdiction thereof, are citizens of
the United States and of the State wherein they reside. No |
State shall make or enforce any law which shall abridge the |
privileges or immunities of citizens of the United States; nor |
shall any State deprive any person of life, liberty, or property,
without due process of law; nor deny to any person within its
jurisdiction the equal protection of the laws.”
28 U.S.C. § 1257.
“State courts; certiorari
(a) Final judgments or decrees rendered by the highest
court of a State in which a decision could be had, may be
reviewed by the Supreme Court by writ of certiorari where
the validity of a treaty or statute of the United States is drawn
in question or where the validity of a statute of any State is
drawn in question on the ground of its being repugnant to the
Constitution, treaties, or laws of the United States, or where
any title, right, privilege, or immunity is specially set up or
claimed under the Constitution or the treaties or statutes of,
or any commission held or authority exercised under, the
United States.
(b) For the purposes of this section, the term "highest court
of a State" includes the District of Columbia Court of
Appeals.”
Mad. Code Ann., Health Gen. § 5-601.
‘Definitions
(a) In this subtitle the following words have the meanings
A 38
Baa ae
indicated.
(b) "Advance directive" means:
(1) A witnessed written document, voluntarily executed by
the declarant in accordance with the requirements of this
subtitle; or
(2) A witnessed oral statement, made by the declarant in
accordance with the provisions of this subtitle.
(c) "Agent" means an adult appointed by the declarant under
an advance directive made in accordance with the provisions
of this subtitle to make health care decisions for the
declarant.
(d) "Attending physician" means the physician who has
primary responsibility for the treatment and care of the
patient.
(e) "Best interest" means that the benefits to the individua!
resulting from a treatment outweigh the burdens to the
individual resulting from that treatment, taking into account:
(1) The effect of the treatment on the physical, emotional,
and cognitive functions of the individual;
(2) The degree of physical pain or discomfort caused to the
individual by the treatment, or the withholding or withdrawal
of the treatment;
(3) The degree to which the individual's medical condition,
the treatment, or the withholding or withdrawal of treatment
result in a severe and continuing impairment of the dignity of
the individual by subjecting the individual to a condition of
extreme humiliation and dependency;
(4) The effect of the treatment on the life expectancy of the
individual;
(5) The prognosis of the individual for recovery, with and
without the treatment;
(6) The risks, side effects, and benefits of the treatment or the
withholding or withdrawal of the treatment; and
(7) The religious beliefs and basic values of the individual
receiving treatment, to the extent these may assist the
decision maker in determining best interest.
(f) "Competent individual" means a person who is at least 18
years of age or who under § 20-102(a) of this article has the
same Capacity as an adult to consent to medical treatment and
who has not been determined to be incapable of making an
informed decision.
(g) "Declarant" means a competent individual who makes an
advance directive while capable of making and
communicating an informed decision.
(h) "Emergency medical services 'do not resuscitate order’ "
means a physician's written order in a form established by
protocol issued by the Maryland Institute for Emergency
Medical Services in conjunction with the State Board of
Physicians which, in the event of a cardiac or respiratory
arrest of a particular patient, authorizes certified or licensed
emergency medical services personnel to withhold or
withdraw cardiopulmonary resuscitation including cardiac
compression, endotracheal intubation, other advanced airway
management techniques, artificial ventilation, defibrillation,
and other related life- sustaining procedures.
(i) "End-stage condition" means an advanced, progressive,
irreversible condition caused by injury, disease, or illness:
(1) That has caused severe and permanent deterioration
indicated by incompetency and complete physical
dependency; and
(2) For which, to a reasonable degree of medical certainty,
treatment of the irreversible condition would be medically
ineffective.
(j) "Health care practitioner" means:
(1) An individual licensed or certified under the Health
Occupations Article or § 13-516 of the Education Article to
provide health care; or
(2) The administrator of a hospital ora person designated by
the administrator in accordance with hospital policy.
(k)(1) "Health care provider" means a health care practitioner
or a facility that provides health care to individuals.
(2) "Health care provider" includes agents or employees of a
health care practitioner or a facility that provides health care
to individuals.
(1)(1) "Incapable of making an informed decision" means the
inability of an adult patient to make an informed decision
about the provision, withholding, or withdrawal of a specific
medical treatment or course of treatment because the patient
is unable to understand the nature, extent, or probable
consequences of the proposed treatment or course of
treatment, is unable to make a rational evaluation of the
burdens, risks, and benefits of the treatment or course of
treatment, or is unable to communicate a decision.
(2) For the purposes of this subtitle, a competent individual
who is able to communicate by means other than speech may
not be considered incapable of making an informed decision.
(m)(1) "Life-sustaining procedure" means any medical
procedure, treatment, or intervention that:
(i) Utilizes mechanical or other artificial means to sustain,
restore, or supplant a spontaneous vital function; and
(ci) Is of such a nature as to afford a patient no reasonable
expectation of recovery from a terminal condition, persistent
vegetative state, or end-stage condition.
(2) "Life-sustaining procedure" includes artificially
administered hydration and nutrition, and cardiopulmonary
resuscitation.
(n) "Medically ineffective treatment" means that, to a
reasonable degree of medical certainty, a medical procedure
will not:
(1) Prevent or reduce the deterioration of the health of an
individual; or
(2) Prevent the impending death of an individual.
(0) "Persistent vegetative state" means a condition caused by
injury, disease, or illness:
(1) In which a patient has suffered a loss of consciousness,
exhibiting no behavioral evidence of self-awareness or
awareness of surroundings in a learned manner other than
reflex activity of muscles and nerves for low level
- —
‘conditioned response; and
(2) From which, after the passage of a medically appropriate
period of time, it can be determined, to a reasonable degree
of medical certainty, that there can be no recovery.
(p) "Physician" means a person licensed to practice medicine
in the State or in the jurisdiction where the treatment is to be
rendered or withheld.
(q) “Terminal condition" means an incurable condition
caused by injury, disease, or illness which, to a reasonable
degree of medical certainty, makes death imminent and from
which, despite the application of life-sustaining procedures,
there can be no recovery.”
Ma. Code Ann., Health Gen, § 5-602.
“Advanced directive
(a) Any competent individual may, at any time, make a
written advance directive regarding the provision of health
care to that individual, or the withholding or withdrawal of
health care from that individual.
(b)(1) Any competent individual may, at any time, make a
written advance directive appointing an agent to make health
care decisions for the individual under the circumstances
stated in the advance directive.
(2) An owner, operator, or employee of a health care facility
from which the declarant is receiving health care may not
serve as a health care agent unless the person would qualify
as a surrogate decision maker under § 5-605(a) of this
subtitle.
(3) An agent appointed under this subtitle has decision
making priority over any individuals otherwise authorized
under this subtitle to make health care decisions for a
declarant.
(c)(1) A written advance directive shall be dated, signed by
—_ —— EE ——— ae et ae TREES
or at the express direction of the declarant, and subscribed by
two witnesses.
(2)(i) Except as provided in items (ii) and (iii) of this
paragraph, any competent individual may serve as a witness
to an advance directive, including an employee of a health
care facility or physician caring for the declarant if acting in
good faith. r
(ii) The health care agent of the declarant may not serve as a
witness.
(iii) At least one of the witnesses must be an individual who
is not knowingly entitled to any portion of the estate of the
declarant or knowingly entitled to any financial benefit by
reason of the death of the declarant.
(d)(1) Any competent individual may make an oral advance
directive to authorize the providing, withholding, or
withdrawing of any life-sustaining procedure or to appoint an
agent to make health care decisions for the individual.
(2) An oral advance directive shall have the same effect as a
written advance directive if made in the presence of the
attending physician and one witness and if the substance of
the oral advance directive is documented as part of the
individual's medical record. The documentation shall be
dated and signed by the attending physician and the witness.
(e)(1) Unless otherwise provided in the document, an
advance directive shall become effective when the declarant's
attending physician and a second physician certify in writing
that the patient is incapable of making an informed decision.
(2) If a patient is unconscious, or unable to communicate by
any means, the certification of a second physician is not
required under paragraph (1) of this subsection.
(f)(1) It shall be the responsibility of the declarant to notify
the attending physician that an advance directive has been
made. In the event the declarant becomes comatose,
incompetent, or otherwise incapable of communication, any
other person may notify the physician of the existence of an
advance directive.
(2) An attending physician who is notified of the existence of
the advance directive shall promptly:
(i) If the advance directive is written, make the advance
directive or a copy of the advance directive a part of the
declarant's medical records; or
(ii) If the advance directive is oral, make the substance of the
advance directive, including the date the advance directive
was made and the name of the attending physician, a part of
the declarant's medical records.
(g) It shall be the responsibility of the declarant to notify a
health care agent that the agent has been named in an
advance directive to act on the declarant's behalf.
(h) Unless otherwise provided in the patient's advance
directive, a patient's agent shall act in accordance with the
provisions of § 5-605(c) of this subtitle.
(1) The absence of an advance directive creates no
presumption as to the patient's intent to consent to or refuse
life-sustaining procedures.”
Md. Code Ann., Health Gen. § 5-605.
‘Authorization of surrogate
(a)(1) In this subsection, "unavailable" means:
(i) After reasonable inquiry, a health care provider is unaware
of the existence of a surrogate decision maker;
(ii) After reasonable inquiry, a health care provider cannot
ascertain the whereabouts of a surrogate decision maker;
(iii) A surrogate decision maker has not responded in a
timely manner, taking into account the health care needs of
the individual, to a written or oral message from a health care
provider;
(iv) A surrogate decision maker is incapacitated; or
(v) A surrogate decision maker is unwilling to make
decisions concerning health care for the individual.
(2) The following individuals or groups, in the specified
order of priority, may make decisions about health care for a
person who has been certified to be incapable of making an
informed decision and who has not appointed a health care
agent in accordance with this subtitle. Individuals in a
particular class may be consulted to make a decision only if
all individuals in the next higher class are unavailable:
(i) A guardian for the patient, if one has been appointed;
(ii) The patient's spouse;
(iii) An adult child of the patient;
(iv) A parent of the patient;
(v) An adult brother or sister of the patient; or
(vi) A friend or other relative of the patient who meets the
requirements of paragraph (3) of this subsection.
(3) A friend or other relative may make decisions about
health care for a patient under paragraph (2) of this
subsection if the person:
(i) Is a competent individual; and
(ii) Presents an affidavit to the attending physician stating:
1. That the person is a relative or close friend of the patient;
and
2. Specific facts and circumstances demonstrating that the
person has maintained regular contact with the patient
sufficient to be familiar with the patient's activities, health,
and personal beliefs.
(4) The attending physician shall include the affidavit
presented under paragraph (3) of this subsection in the
patient's medical record.
(b)(1) If persons with equal decision making priority under
subsection (a) of this section disagree about a health care
decision, and a person who is incapable of making an
informed decision is receiving care in a hospital or related
institution, the attending physician or an individual specified
in subsection (a) of this section shall refer the case to the
institution's patient care advisory committee, and may act in
accordance with the recommendation of the committee or
—— " oe TO RR rr rer
transfer the patient in accordance with the provisions of § 5-
613 of this subtitle. A physician who acts in accordance with
the recommendation of the committee is not subject to
liability for any claim based on lack of consent or
authorization for the action.
(2) If a person who is incapable of making an informed
decision is not in a hospital or related institution, a physician
may not withhold or withdraw life-sustaining procedures if
there is not agreement among all the persons in the same
class.
(c)(1) Any person authorized to make health care decisions
for another under this section shall base those decisions on
the wishes of the patient and, if the wishes of the patient are
unknown or unclear, on the patient's best interest.
(2) In determining the wishes of the patient, a surrogate shall
consider the patient's:
(i) Current diagnosis and prognosis with and without the
treatment at issue;
(ii) Expressed preferences regarding the provision of, or the
withholding or withdrawal of, the specific treatment at issue
or of similar treatments;
(iii) Relevant religious and moral beliefs and personal values;
(iv) Behavior, attitudes, and past conduct with respect to the
treatment at issue and medical treatment generally;
(v) Reactions to the provision of, or the withholding or
withdrawal of, a similar treatment for another individual; and
(vi) Expressed concerns about the effect on the family or
intimate friends of the patient if a treatment were provided,
withheld, or withdrawn.
(3) The decision of a surrogate regarding whether life-
sustaining procedures should be provided, withheld, or
withdrawn shall not be based, in whole or in part, on either a
patient's preexisting, long-term mental or physical disability,
or a patient's economic disadvantage.
(4) A surrogate shall inform the patient, to the extent
possible, of the proposed procedure and the fact that someone
else is authorized to make a decision regarding that
procedure.
(d) A surrogate may not authorize:
(1) Sterilization; or
(2) Treatment for a mental disorder.”
Mad. Code Ann., Health Gen § 5-616.
“‘Nonimpairment of existing rights
(a) The provisions of this subtitle are cumulative with
existing law regarding an individual's right to consent or
refuse to consent to medical treatment and do not impair any
existing rights or responsibilities which a health care
provider, a patient, including a minor or incompetent patient,
or a patient's family may have in regard to the provision,
withholding, or withdrawal of life- sustaining procedures
under the common law or statutes of the State.
(b) A valid living will or durable power of attorney for health
care made prior to October 1, 1993 shall be given effect as
provided in this article, even if not executed in accordance
with the terms of this article.”
Md. Code Ann., Health Gen § 5-618.
“Short title
The provisions of this subtitle shall be known and may be
cited as the ‘Health Care Decisions Act’.”
Mad Rule 2-423.
“MENTAL OR PHYSICAL EXAMINATION OF
PERSONS
When the mental or physical condition or characteristic of a
party or of a person in the custody or under the legal control
of a party is in controversy, the court may order the party to
submit to a mental or physical examination by a suitably
licensed or certified examiner or to produce for examination
the person in the custody or under the legal control of the
party. The order may be entered only on motion for good
cause shown and upon notice to the person to be examined
and to all parties. It shall specify the time and place, manner,
conditions, and scope of the examination and the person or
persons by whom it is to be made. The order may regulate the
filing and distribution of a report of findings and conclusions
and the testimony at trial by the examiner, the payment of
expenses, and any other relevant matters.”
S.Ct. Rule 14.1(i)(iv)
Record Citations Required by S.Ct. Rule 14.1(g)(i)
Mr. Foley’s Motion to Reconsider to Court of Appeals of
Maryland
RESPONDENT’S MOTION TO RECONSIDER
Pursuant to Md. Rule 8-605, Respondent, Michael L.
Foley, requests that this Court reconsider, on Federal and
State due process grounds, its April 4, 2003 order and
opinion (“Opinion”), a copy of which is attached hereto as
Exhibit “1”.
PRELIMINARY STATEMENT
t
eee ee ee ee ee ee ee eee ee oe
This Court’s Opinion determined that the trial court’s
“discovery” opinion and order® (see E416-E422)”, that
required Mr. Foley’s wife, Sophia E. Foley, to endure
additional Lyme disease tests against the wishes of her
appointed Health Care Agent, was not a collateral order
subject to appellate review. Mr. Foley asserts herein that this
Court misapplied the collateral order doctrine. More
importantly, however, the trial court’s order and this Court’s
failure to allow an appeal were illegal infringements upon
Mrs. Foley’s federal and state constitutional rights, as
properly asserted by Mr. Foley. '°
Specifically, Mrs. Foley has a substantive due process
right to her important liberty interest in self-determination of
health care. That right will be violated if the trial court’s
order stands. Moreover, this Court’s denial of a right to
appeal the trial court’s “discovery” order, on the facts
presented in this case, violates Mrs. Foley’s right to
procedural due process protecting her liberty interest.
Clearly, any “discovery” order that infringes on a
constitutional liberty interest must be appealable. This is so,
: Mr. Foley maintains that the trial court’s order amounted
to more than a mere discovery order and, instead, made a final
resolution of Mrs. Foley’s right to self-determination.
. References to the record extract before the Court of
Special Appeals shall be cited with the letter “E” followed by the
page number. All cited pages of the extract are attached hereto
collectively as Exhibit “2”.
- Although Mr. Foley has sought to shield his wife’s
constitutionally protected liberty interests throughout this matter,
this Court’s decision to deny his right to appeal has exacerbated
the crisis. Clearly, Mr. Foley’s briefing and arguments, before this
Court and below, focused on the merits of the case. This Court’s
remarkable finding that Mr. Foley lacked a right of appeal has
precipitated the arguments contained herein and has set the stage
for review of the constitutional implications of this Court’s
Opinion and its application to the facts.
whether the discovery order infringes upon the Fifth
Amendment right against self-incrimination or, as in this
case, the established liberty interest in self-determination.
Furthermore, from a public policy perspective, the
Court’s Opinion leaves doubtful the efficacy of the
provisions of the Health Care Decisions Act (the “Act’),
codified at Md. Code Ann., Health-Gen. (““HG’’) §5-601, et
seq., and undermines the certainty of self-determination
clearly intended by the General Assembly. The Opinion, in
its current rendition, now holds that a person’s health care
wishes can be overcome merely by an unappealable
“discovery” order. Thus, the whole purpose of the Act, and
the clear intent of the General Assembly, may be frustrated
by the whim of an unrestrained trial judge, if the right to
appeal is abridged.
SCOPE OF MOTION TO RECONSIDER
In its Opinion, this Court determined that the trial
court’s order did not satisfy the so-called “collateral order
doctrine” and was not subject to appellate review. Mr. Foley
- disagrees with this Court’s interpretation and application of
the collateral order doctrine and would like this Court to
reconsider directly that interpretation and application. '!
However, Mr. Foley, in this motion, will focus on the
constitutional implications of both the trial court’s order and
this Court’s erroneous Opinion.
Simply put, Mr. Foley argues here that the trial
court’s “discovery” order, compelling Mrs. Foley to endure
the Lyme disease tests over the objection of her Health Care
Agent and without the right of appeal, violates irreparably
Mrs. Foley’s substantive due process rights in her self-
11
Obviously, Mr. Foley would welcome and applaud this
Court’s decision to review and alter its collateral order doctrine
interpretation and application, as set forth in the Opinion.
Knowing that this Court is unlikely to reconsider its Opinion on
that basis, Mr. Foley instead alerts this Court to the constitutional
implications of its Opinion given the facts presented in this case.
Ne REM SEE SEN aM OO bS SS or te
_ Ct i
ee ees
determination liberty interest. Moreover, her significant right
to procedural due process protecting her self-determination
liberty interest has been violated by the trial court’s order and
this Court’s Opinion.
LIMITED” FACTS RELEVANT TO THIS MOTION
In 1992, Mrs. Foley’s physician determined that she
suffered from dementia, most likely of the Alzheimer’s type.
(See Opinion at 2.) Prior to the deterioration of her disease,
and while competent, she executed a valid health care power
of attorney naming her husband, Michael, as her health care
agent. (See Opinion at 2.) Thereafter, in 1997, one of Mrs.
Foley’s sisters, Eugenia Berg, filed her first guardianship
petition, alleging that Mrs. Foley’s dementia was caused by
Lyme disease. (See Opinion at 2.) Shortly thereafter, Mr.
Foley had his wife tested for Lyme disease, the tests
indicated that she was not infected, and the petition was
properly, and finally, dismissed. (See Opinion at 2.)
In 2000, Ms. Berg instituted the instant matter by
filing her second guardianship petition (the “Petition’’)
seeking appointment as Mrs. Foley’s guardian. (See Opinion
at 2; E001.) In the Petition, Ms. Berg sought to wrest control
of Mrs. Foley from Mr. Foley, undermine Mrs. Foley’s health
care power of attorney, and render impotent Mr. Foley’s
health care agency. (See E008.) Ms. Berg clearly stated, in
her Petition, that “Mr. Foley ... has refused to... permit
Mrs. Foley to be taken to a doctor for the purpose of having
Mrs. Foley examined and treated for Lyme disease . . . .”
(See E004.) It is clear, from the quoted text of the Petition,
that Ms. Berg sought to be appointed Guardian so that she
could have Mrs. Foley “examined and treated for Lyme
disease” contrary to the decision of Mrs. Foley’s proper
12
Only those facts relevant to the disposition of this motion
are set forth here. When citing to the Opinion, Mr. Foley refers to
the facts as gleaned by this Court and does not concur that events
occurred exactly as represented in the Opinion.
Health Care Agent, Mr. Foley. It is important for this Court
to note that, at no time, either in the original Petition for
Guardianship or in any subsequent pleading or affidavit, has
Ms. Berg alleged that Mr. Foley was not following his wife’s
wishes in making health care decisions, as required by the
Act.
Ms. Berg and her counsel have never concealed that
they filed the Petition in order to have Mrs. Foley endure
certain tests for Lyme disease. (See E004 (Petition requests
“medical examination” and “treatment ... for Lyme
disease”’); E006 (Petition seeks examination and treatment);
E346 at 20 — E347 at 11 (Petition filed for “second look” at
diagnosis).) The trial court agreed that the entire crux of Ms.
Berg’s Petition was another attempt to diagnose Lyme
disease. (See E181 (Petition regards re-diagnosis).)
It is uncontested that Mrs. Foley is not able to make
her own health care decisions. (See E005 (Petition); E184
(Answer to Petition).) It is also uncontested that Mr. Foley is
the properly appointed Health Care Agent, pursuant to the
Act. (See Opinion at 2.) Further, it is not contested that Mr.
Foley objects, in his role as Health Care Agent, to the
administration of additional tests for Lyme disease. Finally,
there has been no allegation that Mr. Foley’s decision is, in
any way, contrary to his wife’s wishes. Thus, it should be
clear that the Petition sought to test for Lyme disease, to
control Mrs. Foley’s care, and to override Mrs. Foley’s right
to self-determination and Mr. Foley’s legitimate health care
agency.
Apparently unwilling to wait for the trial court to
reach the merits of the Petition in due course, Ms. Berg
instead sought to have Mrs. Foley tested for Lyme disease by
improperly employing a motion for physical examination
pursuant to a discovery rule. See Md. Rule 2-423. Ms.
Berg’s “discovery” motion sought implementation of a
protocol for diagnosing Lyme disease prescribed by so-called
“experts” hired by Ms. Berg. (See Opinion at 3.) The
“discovery” motion sought exactly the same relief sought in
the Petition, namely, control over Mrs. Foley for the purpose
of testing for, and treatment of, Lyme disease, among other
things. Mr. Foley, asserting his duty and responsibility as
Mrs. Foley’s appointed Health Care Agent, appropriately
objected to the motion. In a ruling, remarkable for its
absurdity’’, the trial court granted the motion.
Of course, Mr. Foley appealed the trial court’s
decision’*. Chief Judge Murphy initially determined that an
appeal should proceed, under the collateral order doctrine.
Later, the Court of Special Appeals found, in its opinion, that
the collateral order doctrine allowed appellate review. This
Court granted a petition for certiorari and, in its Opinion,
reversed the Court of Special Appeals and directed that the
appeal be dismissed, holding that the trial court’s “discovery”
order was not subject to appeal.’
Finally, as this Motion is reviewed, it should be noted
that the Court’s Opinion was apparently based on the
erroneous assumption that the Lyme testing, contemplated
¥ The absurdity of the ruling becomes painfully evident after
reviewing other plausible situations in which the use of discovery
rules, te obtain the exact same relief sought in the case-in-chief,
would be plainly absurd. Such examples are discussed briefly in
section III(B)(3) of this Motion. (See infra at 13.)
m Mr. Foley can only presume that the “pragmatic” trial
court sought to “resolve” the dispute over the Lyme disease, once
and for all, by succumbing to Ms. Berg’s “discovery” motion. In
the Court’s mind, the tests may have provided a quick and
reasonable resolution to the controversy. However, Mr. Foley, as
his wife’s agent, resisted and exercised her liberty interest in self-
determination.
" It is quite interesting to note that, had the trial court
granted Ms. Berg’s Petition and ordered Ms. Berg to have Mrs.
Foley tested for Lyme disease, that order would have been
appealable. However, since the order for the Lyme tests resulted
from a “discovery” motion, this Court held that no appeal lies.
under the trial court’s order, was required to satisfy the
requisite determination in a guardianship proceeding that
Sophia E. Foley is disabled. (See Opinion at 7, 8.) Since the
trial court had already finally determined in 1997 that Mrs.
Foley was disabled (see E051 at 5 — E051 at 9), and since
that finding of fact has never been challenged by any party to
this case, there is no need for additional medical testing.
Instead, Ms. Berg used the discovery process to circumvent
the guardianship process and asked the trial court to grant,
via discovery motion, what was being requested in the
guardianship petition.
ARGUMENT
I. State and Federal Constitutions Protect Substantive
And Procedural Due Process, Especially When Liberty
Interests Are Affected.
The due process clauses in the Fourteenth
Amendment to the United States Constitution and in Article
24 of the Maryland Declaration of Rights'® protect an
individual's interests in substantive and procedural due
process. See People's Counsel v. Maryland Pub. Serv.
Comm'n, 355 Md. 1, 25-27 (1999) (discussing substantive
due process); Roberts v. Total Health Care, Inc., 349 Md.
499, 508-09 (1998) (discussing procedural due process); see
also Pitsenberger v. Pitsenberger, 287 Md. 20, 27 (1980). In
general, there are four classes of due process actions: "(1) a
procedural due process claim premised on the deprivation of
a property interest; (2) a procedural due process claim
premised on the deprivation of a liberty interest; (3) a
substantive due process claim premised on the deprivation of
- Many provisions of the Maryland Constitution, such as
Article 24 of the Declaration of Rights have counterparts in the
United States Constitution. Article 24 is in pari materia with its
federal counterpart, is the equivalent of the federal provision, and
should be interpreted in the same manner. See, e.g., Dua v.
Comcast Cable of Maryland, Inc., 370 Md. 604, 621 (2002).
A 54
————_aaaeeeaee
4 property interest; and (4) a substantive due process claim
premised on the deprivation of a liberty interest." Samuels v.
Tschechtelin, 135 Md. App. 483, 523 (2000).
Therefore, when a liberty interest is in jeopardy, a
litigant may seek to protect it by asserting both procedural
and substantive due process rights. Inthis motion, Mr. Foley
first argues a substantive due process claim premised on
deprivation of a liberty interest. He then argues a procedural
due process claim based upon deprivation of that same liberty
interest.
II. Mr. Foley May Assert Mrs. Foley’s Fundamental
Liberty Interest In Self- Determination Of Her Care.
Including Determination Of Medical Testing.
A. Mrs. Foley Has A Fundamental Liberty
Interest In Self-Determination Of Her Medical Future.
There is no doubt that the right Mr. Foley seeks to
protect is Mrs. Foley’s fundamental liberty interest in self-
determination. All persons have broad rights to bodily
integrity. Baer v. Baer, 128 Md. App. 469, 480 (1999)
(citing Cruzan v. Missouri Dept. of Health, 497 U.S. 261.
271, 110 S.Ct. 2841, 2847 (1990)). A person’s right to resist
medical intervention implicates a constitutionally protected
liberty interest. Cruzan, 497 U.S. at 279, 110 S.Ct. at 2851:
Baer 128 Md. App. at 481. Furthermore, these “interests”
are not “run-of-the-mill” civil disputes and require careful
protection. Cruzan, 497 U.S. at 283, 110 S.Ct. at 2854; see
Mack v. Mack, 329 Md. 188, 207 (1993).
Of course, Ms. Berg and her so-called “experts”
might see Mr. Foley’s refusal of additional, invasive Lyme
testing, on his wife’s behalf, as folly. Nevertheless, Mrs.
Foley’s right goes so far as to allow her, or her agent, the
right to make even foolish decisions regarding her medical
treatment. “The very foundation of the doctrine . . . is .
everyone's right to forego treatment or even cure if it entails
what for [her] are intolerable consequences .. ., however
warped or perverted [her] sense of values may be in the eyes
of the medical profession, or even of the community ....
Individual freedom .. . is guaranteed only if people are
given the right to make choices that would generally be
regarded as foolish ones.” Baer, 128 Md. App. at 481 (citing
United States v. Charters, 829 F.2d 479, 495 (4® Cir. 1987))
(emphasis added.)
There is no doubt that the right to refuse testing or
treatment is a liberty interest protected by Fourteenth
Amendment. Mack, 329 Md. at 211 (citing Cruzan, 497 U.S.
at 278, 287, 304-05, 331.) In Cruzan, the United States
Supreme Court emphasized that a liberty interest in self-
determination under the Fourteenth Amendment gives rise to
a constitutionally protected right. Cruzan, 497 U.S. at 281,
110 S.Ct. at 2853 (it cannot be disputed that the Due Process
Clause protects an interest in life as well as an interest in self-
direction of medical care); see Mack v. Mack, 329 Md. 188,
211 (1993) (the United States Supreme Court's decision in
Cruzan strongly implied that a liberty interest under the
Fourteenth Amendment gives rise to a constitutionally
protected right to control one’s own medical care.)
Of course, this same right to “bodily integrity” might
also be raised, albeit unsuccessfully, by other persons in
appeals of discovery orders compelling examinations or tests.
For example, the alleged father in a paternity action might
raise his right to “bodily integrity” in an attempt to avoid
DNA testing. While the putative father’s argument may fail,
the level of protection of the right to “bodily integrity” in
Mrs. Foley’s case far exceeds the level in ordinary discovery
disputes.
In the instant case, Mrs. Foley, through her agent,
seeks to control and limit her own testing and treatment for
Lyme disease in an effort to determine the future of her own
life. On the other hand, the taking of evidence in a paternity
Se ee ge ge
action or other proceeding may momentarily violate “bodily
integrity”, but any implication of a liberty interest is oft
outweighed by a legitimate and compelling state interests, —
i.e., establish paternity, etc. Moreover, Mrs. Foley’s right to
self-determination of medical testing and treatment is
“particularized and intense” and can only be overridden by an
“overwhelming” state interest. '” In this case, however, there
simply are no state interests that outweigh Mrs. Foley’s right,
exercised by her Health Care Agent, to refrain from testing
and treatment. Simply put, the order for exam or testing in
this case directly affects and completely eviscerates Mrs.
Foley’s right to self-determination through her Health Care
Agent. No state interest, overwhelming or otherwise, is
advanced by denying Mrs. Foley’s “particularized and
intense” liberty interest.
It is also important to note, in the context of this
constitutional analysis, that the liberty interest asserted by
Mrs. Foley will be forever lost. Once the Lyme disease
testing is endured, the right to resist the testing will be
forever lost to Mrs. Foley. When the State seeks, not to
merely infringe on a liberty interest, but to permanently
deprive an individual of that interest, a heightened standard
of review is applied. Jn re Adoption/Guardianship No.
95195062, 116 Md. App. 443, 454 (1997) (citing Santosky v.
Kramer, 455 U.S. 745, 759, 102 S.Ct. 1388, 1397 (1982)).
Any drastic and permanent deprivation of a liberty interest
requires more careful protection than a momentary
deprivation.
6 See Williams v. Wilzack, 319 Md. 485, 498 (1990) ("The
liberty interest of a non-institutionalized mental patient to refuse
treatment . . . was of such importance that it could be overcome
only by 'an overwhelming [s]tate interest.'") (quoting /n re Roe,
421 N.E.2d 40 (Mass. 1981)); see also Cruzan, 497 U.S. at 314,
110 S.Ct. at 2870 (“particularized and intense” interest) (Brennan,
J., dissenting on other grounds.)
It should be clear, then, that Mrs. Foley’s right to self-
determination is an “intense” and fundamental liberty
interest, carefully protected by both substantive and
procedural due process, and not outweighed by any
legitimate, compelling, or overwhelming state interest.
B. Mr. Foley Has The Right To Direct Mrs.
Foley’s Care And To Advance Her Liberty Interests.
Patients who are physically or mentally unable to
exercise the right to refuse treatment, nevertheless still enjoy
the right. See Mack, 329 Md. at 212; see also 73 Op. Att'y
Gen. 162, 175-78 (1988). The General Assembly created a
statutory scheme protecting Mrs. Foley’s important right.
The Act provides a hierarchy of persons that may exercise a
patient’s right to refuse treatment. Sitting atop that
hierarchical list is a properly appointed Health Care Agent,
like Mr. Foley. Specifically, a Health Care Agent has
medical decision-making priority over any other individuals.
See HG §5-602(b)(3). Next on the list, and always
subordinate to the Health Care Agent, is any court-appointed
guardian. See HG §5-605(a)(2). Mr. Foley, as the appointed
Health Care Agent, has the right to protect his wife’s
fundamental right to self-determination. That right should
remain unfettered by Ms. Berg’s Petition, by the trial court’s
absurd “discovery” Order, or by this Court’s Opinion.
oa Mr. Foley Should Not Have To Place His
Liberty In Jeopardy In Order To Fulfill His Duty As Mrs.
Foley’s Health Care Agent.
At oral argument, some on the Court suggested that
Mr. Foley could get his appeal by refusing to comply with
the trial court’s order, thereby subjecting himself to an
appealable contempt order. See Md. Code Ann., Cts. & Jud.
Proc. (“C&JP”) §12-304 Clearly, this Court cannot, within
proper constitutional parameters, require Mr. Foley to place
his liberty in jeopardy at a contempt hearing in order to have
this Court review and protect his wife’s clearly established
liberty interests. Civil contempt proceedings involving
incarceration are serious matters imposing the potential
burden of imprisonment. See Department of Soc. Serv. v.
Stein, 328 Md. 1, 17 n.10 (1992) (where an “innocent”
person, like Mr. Foley, should not be compelled to risk
contempt to get appellate review). The proper time for this
Court to decide the constitutional issues precipitating from
the trial court’s order is now.
II. The Trial Court’s Order And The Opinion Of This
Court Violate A Fundamental Liberty Interest Sheltered By
Substantive And Procedural Due Process Constitutional
Protections.
A. The Trial Court’s Order Violates A
Fundamental Liberty Interest Protected By Substantive Due
Process.
The guarantee of due process contains a substantive
component that “forbids the government to infringe certain
‘fundamental’ liberty interests at all, no matter what process
is provided, unless the infringement is narrowly tailored to
serve a compelling state interest.” Reno v. Flores, 507 U.S.
292, 301-02, 113 S.Ct. 1439 (1993) (emphasis in original).
The trial court’s so-called “discovery” order trumped
Mr. Foley’s agency and his wife’s liberty interest in self-
determination without advancing any compelling state
interest. Mrs. Foley’s liberty interest, however, is protected
by substantive due process and must not be violated by the
trial court. Furthermore, this Court’s decision to render the
trial court’s determination unappealable was, itself, a
violation of Mrs. Foley’s substantive due process rights. For
these reasons, the Opinion must be reconsidered and the
appeal must be allowed to proceed on the merits.
B. The Trial Court’s Order And The Opinion Of
This Court Violate A Fundamental Liberty Interest Protected
By Procedural Due Process.
1. The Foleys Enjoy Procedural Due
Process Protections Applied With Flexibility To The Facts
Of This Case.
The Fourteenth Amendment and the Maryland
Declaration of Rights provide that the trial court and this
Court shall not deprive a person of life, liberty, or property
without due process of law. Among other things, the due
process right affords a right to procedural due process. Mrs.
Foley is entitled to a constitutionally required minimum of
procedural safeguards in connection with a deprivation of
life, liberty, or property by the State. Daniels v. Williams,
474 U.S. 327, 337, 106 S.Ct. 662 (1986) (Stevens, J.
concurring). “Procedural due process imposes constraints on
governmental decisions [that] deprive individuals of ‘liberty’
or 'property' interests within the meaning of the Due Process
Clause....”” Mathews v. Eldridge, 424 U.S. 319, 332, 96 S.Ct.
893 (1976).
Procedural due process, however, is a flexible concept
that “calls for such procedural protection as a particular
situation may demand.” Wagner v. Wagner, 109 Md. App. 1,
24, cert. denied, 343 Md. 334 (1996); see In re Adoption/
Guardianship No. 6Z970003, 127 Md. App. 33, 54 (1999),
overruled in part on other grounds, In re
Adoption/Guardianship No. T97036005, 358 Md. 1, 16
(2000). Put another way, "the concept of due process is not
static--the process that is due may change according to the
circumstances." Miserandino v. Resort Prop., Inc., 345 Md.
43, 65, cert. denied, 522 U.S. 953, 118 S.Ct. 376.
The Court must weigh three factors when determining
if procedural due process guarantees an appeal, in this case
“first, the private interest that will be affected by the official
action; second, the risk of an erroneous deprivation of such
interests through the procedures used, and the probable value,
if any, of additional or substitute procedural safeguards; and
finally, the Government's interest, including the function
involved and the fiscal and administrative burdens that the
additiona! or substitute procedural requirement would entail.”
See Maryland v. Bo Peep Day Nursery, 317 Md. 573, 596
(1989) (citing Mathews, 424 U.S. at 334-35, 96 S.Ct. at 903.)
Under the circumstances presented in the instant matter,
considering the three enumerated factors, procedural due
process requires that the trial court’s decision, affecting an
important liberty interest, be subject to appellate review.
r When A Fundamental Liberty Interest
Is Affected By A Trial Court’s Order, An Appeal Is
Guaranteed By Procedural Due Process Protections.
It is conceded that there is no general, universally
applicable, right to an appeal.'® It is well-settled, however,
that liberty interests may not be terminated by the State
absent procedural safeguards that allow for “fundamental
fairness”. See, e.g., Stanley v. Illinois, 405 U.S. 645, 92 S.Ct.
1208 (1972). In this case, because the “discovery” order
implicates Mrs. Foley’s important liberty interests,
'S Mr. Foley acknowledges that the right to an appeal is not an
absolute right required by due process of law, nor is it
automatically an inherent or inalienable right. See Committee for
Responsible Develop. v. Baltimore, 137 Md. App. 60, 78 (2001):
see also Lindsey v. Normet, 405 U.S. 56, 92 S.Ct. 862 (1972);
Brown v. State, 237 Md. 492, 498-499 (1965). Nevertheless,
when a fundamental right is concerned, a review of a trial court’s
action implicating that right is guaranteed.
procedural safeguards that allow for “fundamental fairness”
include the right to seek review of the order by appropriate
appellate tribunals. Procedural due process requires appellate
review of the trial court’s decision implicating Mrs. Foley’s
liberty interest in self-determination.
a As A Rule, When The Trial Court
Grants, Via A Discovery Order, The Same Relief That Is
Sought In The Case-In-Chief, Procedural Due Process
Mandates An Appeal Right.
In this case, because the trial court granted relief via a
“discovery” order, that was the same relief sought in the
case-in-chief, due process rights mandate an appeal.
Procedural due process means that similarly situated persons
are treated with fundamental fairness. In this case, had the
trial court granted guardianship to Ms. Berg, thereby
allowing her to order the desired testing, an appeal would
certainly lie. Mr. Foley was, however, denied his appeal
because the trial judge granted the same relief pursuant to a
purported “discovery” motion. This would be plainly unfair
under any circumstance, and becomes “fundamentally” unfair
when it deprives Mrs. Foley of any avenue to protect her
important liberty interest.
The absurdity of the trial court’s “discovery” order is
best exemplified by listing the other situations in which use
of discovery rules, to obtain the same relief sought in the
case-in-chief, would be plainly absurd. For example, a
discovery order, in a civil action, compelling production of
the same documents sought in a Public Information Act case
would be ludicrous and unfair. Also, in an injunctive action
seeking an order compelling answers to certain questions, it
would be plainly silly and unfair to issue a discovery order
compelling deposition answers to the same questions. In
similar fashion, the “discovery” order in this case, overriding
the decisions of a Health Care Agent in an action that has as
its main purpose overriding the decisions of that same Health
Care Agent, is absurd. Unfortunately, this Court’s
“fundamentally unfair” Opinion left Mr. Foley without the
right to appeal that absurdity.
This Court has allowed interlocutory appeals in the
past, when a “discovery order . . . requiring disclosure of files
which . . . by statute . . . [were] confidential . . .”, because the
order would frustrate the statute in the same way the current
order frustrates the Act. See Stein, 328 Md. 1, 21 (1992)
(citing Ketulla v. Abood, 686 P.2d 1197, 1200-01 (Alaska
1984) (allowing appeal of discovery order where relief not
available from any other court); Foor v. Huntington Nat.
Bank, 499 N.E.2d 197, 1300 (Ohio 1986) (allowing appeal
from discovery order where substantial right affected and
weighing harm of order against interest in judicial
economy.)) Moreover, this Court has found that certain non-
final orders amount to “injunctive” relief. appealable under
C&JP 12-303(3)(i), where order had effect of restraining or
compelling action. See Commission on Medical Discipline v.
Stillman, 291 Md. 390, 398 (1981).
Finally, it is interesting to note that, under HG §5-602
and HG §5-605, a court-appointed guardian (what Ms. Berg
aspires to become) will never take priority over the Health
Care Agent. Therefore, even if Ms. Berg prevailed on the
merits and the trial court appointed her as guardian, she could
still not overrule Mr. Foley’s health care decisions for his
wife. Remarkably, the trial court granted Ms. Berg certain
relief, via the discovery rules, that the trial court could never
have granted to her in the action, even if Ms. Berg had waited
to prevail on the merits. Yet, this Court’s holding renders
such an order unappealable. This anomaly alone should alert
this Court to the procedural and constitutional infirmities in
its Opinion.
IV. This Court Need Not Be Concerned About Creating
An Automatic Right To An Appeal Of Every Discovery
Order.
This Court expressed concern (see Opinion at 8) that
a right to appeal in this case would render every discovery
order appealable. The Court apparently worried that, if Mr.
Foley prevailed, any litigant asserting a right to object to
discovery will argue that the right to object will be forever
lost after complying with a discovery order. The Court
opined that any litigant, seeking to forestall a mental or
physical examination, interrogatory answers, production of
documents or admission of facts, will employ Mr. Foley’s
logic to appeal any disagreeable discovery order. Mr. Foley
seeks to assure the Court that the “sky” will not fall as
predicted, if the present matter is decided on constitutional
grounds. Mainly, this is because the instant case is different
from the situations feared by the Court - Mrs. F oley’s
constitutionally protected liberty interests are implicated,
whereas in normal discovery disputes, there are no such
implications.
Certainly, if Mrs. Foley’s mental capacity was at
issue in a case, she might be appropriately examined to
determine her level of disability. Such is not the case here,
because Mrs. Foley’s capacity is not in dispute.'? Instead,
Ms. Berg filed the Petition to become guardian so that she,
inter alia, can have Mrs. Foley tested for Lyme disease in a
manner consistent with Ms. Berg’s wishes. By bringing such
a claim, Ms. Berg attempted to override Mr. Foley’s
designation as agent and implicated Mrs. Foley’s
fundamental rights. The “discovery” order in this case,
unlike the typical discovery order, implicates such rights and
must be decided under constitutional principles and,
therefore, must be subject to appeal.
19
If Mrs. Foley’s level of disability was truly in dispute, Ms. Berg
should have brought a motion for examination under Rule 10-
202(b).
Ce ee eee
Clearly, the typical discovery order does not implicate
constitutional rights. When, however, such.a right is
affected, the order must be reviewed, on appeal, under
constitutional standards. This just makes simple sense. Any
government action, including a trial court’s discovery order,
must pass constitutional muster and should be immediately
appealable, especially if it permanently deprives a liberty
interest.
For example, interrogatories, requests for admission,
or deposition questions might seek information that would
incriminate a civil litigant or witness. Certainly, a trial court
could not properly issue an order compelling such testimony
without violating liberty interests protected by the Fifth
Amendment to the Federal Constitution. Such interests
apply, not only at trial, but at the discovery stage as well. See
Lefkowitz v. Turley, 414 U.S. 70, 77, 94 S.Ct. 316, 322
(1973); United States v. Kordel, 397 U.S. 1, 7, 90 S.Ct. 763
(1970); see also Gray v. State, 368 Md. 529, 559 (2002);
Kramer v. Levitt, 79 Md. App. 575, 588-89 (1989). Is there
any doubt that such a discovery order, if rendered, would be
immediately appealable on constitutional grounds? The
discovery order in the instant matter should be similarly
appealable because it impedes a liberty interest.
Under the Court’s Opinion in this case, however,
neither discovery order would be appealable. Such
constitutionally victimized litigants would be required to wait
for their appeal and be compelled to decide between (1)
waiving their constitutional right by complying with the
discovery order; or (2) refusing to comply, thereby subjecting
themselves to contempt sanctions. Such is not
constitutionally viable. Thus, Mr. Foley respectfully
contends that the Opinion of this Court is flawed.
CONCLUSION
Mr. Foley requests that this Court reconsider its April
4, 2003 Opinion.”
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.