Does I through III v. District of Columbia
| Decision Date | 07 January 2009 |
| Docket Number | No. 01-02398 (HHK).,01-02398 (HHK). |
| Citation | 593 F.Supp.2d 115 |
| Parties | Jane DOES I THROUGH III, Plaintiffs, v. DISTRICT OF COLUMBIA, et al., Defendants. |
| Court | U.S. District Court — District of Columbia |
Harvey S. Williams, Washington, DC, Irvin V. Cantor, Herman Aubrey Ford, III, Cantor Arkema, P.C., Robert A. Dybing, Thompson & McMullan, P.C., Richmond, VA, for Plaintiffs.
Robert C. Utiger, Andrew J. Saindon, Ellen A. Efros, D.C. Office of Attorney General, Richard S. Love, Office of Corporation Counsel, Office of the Solicitor General, Washington, DC, for Defendants.
Jane Doe I, by her next friend, Duery Felton, Personal Representative of the Estate of Jane Doe II, and Linda Tarlow, Personal Representative of the Estate of Jane Doe III (collectively, "plaintiffs") bring this action under 42 U.S.C. § 1983 against the District of Columbia and the District's Mental Retardation and Developmental ("MRDDA") (collectively, the "District of Columbia") alleging that while Jane Doe I, Jane Doe II, and Jane Doe III were in the District of Columbia's care, the District of Columbia consented to the performance of non-emergency surgical procedures on them without authority to do so. This case is now before the court on the parties' cross-motions for summary judgment after its remand from the United States Court of Appeals for the District of Columbia Circuit (the "Court of Appeals"). Plaintiffs move for partial summary judgment seeking a ruling that they, and all class members for whom the District of Columbia consented to elective surgery between 1970 and December 1998, are entitled to summary judgment on the issue of liability [# 167]. Plaintiffs also move for class certification for resolution of damages pursuant to FED. R. CIV. P. 23 and LCvR 23.1 [# 166]. The District of Columbia moves for summary judgment on all of plaintiffs' claims [# 172].
Upon consideration of the motions, the oppositions thereto, and the record of this case, the court concludes that plaintiffs' motions for partial summary judgement and class certification must be denied and the District of Columbia's motion for summary judgment must be granted in part and denied in part.
Jane Doe I, Jane Doe II, and Jane Doe III received habilitation services from the District of Columbia1 and were institutionalized in District of Columbia facilities beginning in the 1960s.2 In 1984, Jane Doe I became pregnant with her second child, previously having given birth to a healthy boy without developmental disabilities. According to plaintiffs, District of Columbia officials requested that she have an abortion, but Jane Doe I refused. Nevertheless, District of Columbia officials gave their consent for the abortion, which was subsequently performed. Plaintiffs assert that these officials never consulted with Jane Doe I's legal representative nor obtained authorization from a court. See Compl. ¶¶ 14-17.
Jane Doe II was diagnosed in 1994 with exotropia, a condition where one eye deviates from the other. According to plaintiffs, District of Columbia officials gave their consent for an elective surgical procedure without consulting Jane Doe II's mother. Compl. ¶¶ 18-20.
Jane Doe III became pregnant in 1978 and decided to carry her pregnancy to term. Plaintiffs contend that District of Columbia officials gave consent for an abortion without consulting with Jane Doe III's legal representative and without obtaining judgment from a court. Compl. ¶¶ 21-23.
District of Columbia law in effect during the period challenged by plaintiffs specifies a procedure for the certification of incapacity to make health care decisions, and provides a list of those persons authorized to make health care decisions for someone so certified. D.C.Code § 21-2204(a) states: "Mental incapacity to make a health-care decision shall be certified by 2 physicians who are licensed to practice in the District and qualified to make a determination of mental incapacity." Section 21-2210 then directs:
In the absence of a durable power of attorney for health care and provided that the incapacity of the principal has been certified in accordance with § 21-2204, the following individuals, in order of priority set forth below, shall be authorized to grant, refuse or withdraw consent on behalf of a patient with respect to the provision of any health-care service, treatment, or procedure.
D.C.Code § 21-2210(a). The provision then lists the following eight individuals: a court-appointed guardian or conservator, a spouse or domestic partner, an adult child, a parent, an adult sibling, a religious superior if the patient is a member of a religious order, a close friend, and the nearest living relative. Id. The decision to grant, refuse or withdraw consent shall be based on a good faith belief as to the best interests of the patient if the wishes of the patient are unknown and cannot be ascertained. Id. § 21-2210(b).
These laws were supplemented in 1998 with the "Mentally Retarded Citizens Substituted Consent for Health Care Decisions Emergency Amendment Act of 1998," a temporary law that was reauthorized several times. This Act stated that if an MRDDA consumer is certified as an incapacitated individual in accordance with D.C.Code § 21-2204 and there is no known person reasonably available, mentally capable, and willing to act pursuant to D.C.Code § 21-2210, the MRDDA Administrator is authorized to "grant, refuse or withdraw consent on behalf of a customer with respect to the provision of a health care service, treatment or procedure provided that two licensed physicians have certified in writing that the health care service, treatment, or procedure is clinically indicated to maintain the health of the customer." Pls.' Ex. 1, D.C. Act 12-554 (Dec. 30, 1998).3
Although not the written policy of the District of Columbia before April 1990, it was the "custom" of the superintendent of Forest Haven, a MRDDA facility that provided services to the mentally retarded, to sign consents for elective surgery without having been appointed guardian. Pls.' Ex. 4 at 333-335. In 1990, this longstanding custom was set forth in Policy H-18. Pls.' Ex. 13. Policy H-18 required that, for "treatment and non-invasive diagnostic procedures," "[i]nformed consent must be given by the parent or Superintendent/Guardian." Id. at 2. While the policy noted that "[f]amily contact is attempted," Policy H-18, like its informal predecessor, outlined a consent mechanism by which the agency's superintendent alone, "on recommendation from the primary care physician, dental officer, or the Chief of Health Services signs the authorization form ... granting the necessary permission for treatment." Id.
In 1992, Policy H-18 was replaced with Policy H-6. Pls.' Ex. 14. While the new policy incorporated Policy H-18's language regarding obtaining consent for treatment and procedures, Policy H-6 stated, "[i]nformed consent must be given by the parent or Guardian," eliminating the "Superintendent" as an independent provider of informed consent. Id. at 2. However, it also stated that the MRDDA Administrator "will sign" the consent form after being "adequately advised" of the medical need for the procedure, "alternative treatments, expected outcome ..., [and the] nature and degree of risks." Id. at 3.
In 1998, Policy H-6 was again superseded, this time by a policy that contained greater requirements for finding, informing and obtaining consent from family members. Pls.' Ex. 15. Where the MRDDA was able to locate family members to provide consent, the treating physician would be advised to contact the family member for consent. Id. at 4. Where the MRDDA was not able to locate a family member willing to consent, the MRDDA would prepare a package of information including materials provided by the physician and forward it to the then Office of Corporation Counsel for the District of Columbia with a cover letter requesting appointment of a guardian for the patient. Id. at 5-6.
This policy was replaced in 2003 ("2003 Policy"). Pls.' Mot. Prelim. Inj. Ex. 5 [# 104]. The 2003 policy indicates that "[e]fforts should be made to provide information and explanations at the level of consumer comprehension," and that family members should be notified of a contemplated medical procedure and "given an opportunity to grant consent." Id. at 10. In cases where the consumer is certified as incapacitated and "there is no family members [sic] or other person available or willing to provide consent," the 2003 Policy indicates that the MRDDA Administrator "is authorized to grant, refuse or withdraw consent on behalf of a consumer" provided that "two (2) licensed physicians have certified, in writing, that the health care service, treatment, or procedure is clinically indicated to maintain the health of the consumer." Id. at 11.
This case is before the court on remand from the Court of Appeals after that court's review of and decision on this court's rulings granting plaintiffs' motions for an injunction and summary judgment. In 2005, this court held that the MRDDA's failure to inquire into the wishes of consumers before consenting to elective surgeries on their behalf was unlawful. The court enjoined the District of Columbia: (1) from consenting to elective surgical procedures for MRDDA consumers under the 2003 policy; (2) to follow the substituted consent standard, as provided by D.C.Code § 21-2210, in determining whether to grant, refuse, or withdraw consent for any elective surgery on any MRDDA consumer; and (3) to comply with the specific requirements of section 21-2210(b) by attempting to ascertain the "known wishes of the patient," an inquiry which is not limited to but which must include documented reasonable efforts to communicate with that...
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