|
|
| Bar Bulletin |
May,
2003 |
|
Monthly Focus Articles |
|
Constitutional Rights
V. Discovery Rules:
In Maryland, Discovery Wins
By
Michael W. Davis and Angela B. Grau
The recent decision
of the Maryland Court of Appeals in In Re: Sophia E. Foley is a
clear example of how procedure often trumps individual rights. In the
Foley case, the Court of Appeals held that a disabled person must
submit to an extensive physical examination, including blood tests, over
the objection of her designated health care agent. Since the examination
was requested pursuant to Maryland Rule 2-423, a discovery rule, the Court
held it is an unappealable interlocutory order.
This seemingly
narrow ruling may have widespread consequences. It may violate a person’s
constitutional right to self-determination in medical decision-making, a
right that was recognized in the seminal Supreme Court case of Cruzan
v. Director, Missouri Department of Health, and by the Maryland
General Assembly in the Health Care Decisions Act (HCDA).
In Cruzan,
the Supreme Court removed any doubt that there is a
constitutionally-protected liberty interest associated with the right to
refuse lifesaving procedures. The majority’s decision recognized the right
of patient self-determination; however, the Court left it up to the states
to decide whether it was appropriate to defer to the decisions of a
surrogate decision maker. Maryland
has codified the right to self-determination and an individual’s right to
designate a health care agent to make health care decisions on their
behalf in the HCDA.
In 1992, at the age
of 52, Sophia E. Foley was diagnosed with early-onset Alzheimer’s disease.
With knowledge of her impending severe disability, Sophia executed an
advance directive naming her husband of over 24 years, Michael, as her
health care agent, granting him the typical, broad authority to make
health care decisions for her that are consistent with her wishes. Sophia
even expressly declared in her advance directive that Michael should
follow her wishes notwithstanding any contrary feelings or beliefs of her
family members.
In 1997, Sophia’s
sister filed for guardianship of the person, alleging, among other things,
that Sophia’s disability was caused by Lyme disease rather than
Alzheimer’s. She could provide no medical support for her allegations, so
the case was dismissed. It was determined during that case that Sophia’s
condition had deteriorated to such an extent that she was no longer
capable of making appropriate decisions regarding her own health care.
However, since Sophia designated Michael as her health care agent prior to
her severe disability, there was no need to have anyone appointed as
guardian of Sophia’s person.
In 2000, Sophia’s
sister again filed a petition for guardianship. This time, Sophia’s sister
requested a discovery order under Rule 2-423 that would require Sophia to
submit to an extensive physical examination, including blood tests for
Lyme disease. Michael objected to the testing because Sophia had been
tested for Lyme disease in 1997 and the results were negative. Further,
ordering Sophia to undergo this examination would effectively override the
authority granted to Michael in Sophia’s advance directive, violating her
constitutional right to self-determination, without any showing that
Michael was not conforming to Sophia’s wishes regarding her health care.
Nonetheless, the circuit court ordered the examination, acknowledging that
this was really more than a discovery order.
Michael appealed to
the Court of Special Appeals. Chief Judge Murphy initially accepted the
appeal of this interlocutory order on the limited issue of the blood tests
under the collateral order exception to the final judgment rule. In an
unreported opinion, the CSA concurred that this appeal met the
requirements of the collateral order exception. Although it did not
address the right to self-determination, the CSA recognized that the
disputed order effectively granted Sophia’s sister, through discovery,
what she was asking the circuit court to provide to her as part of her
relief in the guardianship petition. The CSA vacated the discovery order,
reasoning that since there was no dispute that Sophia was unable to make
any decisions about her health care, the blood tests would not be
probative of whether a guardian was necessary.
Before the case
could be returned to the circuit court, Sophia’s sister requested
certiorari to the Court of Appeals.
In its decision,
the Court of Appeals did not reach the merits of the case. Instead, the
Court limited its decision to the issue of whether the order being
appealed fit within the requirements of the collateral order exception,
holding that it did not. Process is clearly more important to the Court of
Appeals than Sophia’s underlying right to self-determination or of the
liberty interests that have been placed in jeopardy by this decision. That
being the case, the Foley decision may very well stand for the
proposition that the liberty interests given to all citizens under the U.
S. Constitution, as articulated by an overwhelming majority of the Supreme
Court in the Cruzan case, as reflected by the HCDA, will not be
recognized by the Court of Appeals in Maryland.
|
