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Does v. District of Columbia

November 21, 2005


The opinion of the court was delivered by: Henry H. Kennedy, Jr. United States District Judge


Plaintiffs are three mentally retarded adult women who receive habilitation services*fn1 from the District of Columbia through the Mental Retardation and Developmental Disabilities Administration ("MRDDA"), a component of the Department of Human Services. Jane Doe I is an adult woman in her forties who has received such services from the District of Columbia since 1960. In 1984, allegedly without either consulting with Jane Doe I's legal representative or obtaining substituted judgment from a court, District officials gave their consent to have Jane Doe I's pregnancy aborted. Jane Doe II is an adult woman in her fifties. She was diagnosed in 1994 with exotropia, a condition where one eye deviates from the other. An elective surgical procedure was proposed and District officials gave their consent for the surgical procedure. Although she was active in Jane Doe II's care, Jane Doe II's mother and court-appointed advocate alleges that she was not consulted regarding the procedure. Jane Doe III became pregnant in 1978 and, according to plaintiffs, decided to carry the pregnancy to term. District officials, however, allegedly decided that she should have an abortion and gave their consent for the procedure without consulting with Jane Doe III's legal representative and without obtaining substituted judgment from a court.

By their next friends, plaintiffs bring this action under 42 U.S.C. § 1983 asserting that their substantive and procedural due process rights secured by the Fifth and Fourteenth Amendments have been violated by the District's unlawful practice of authorizing elective surgical procedures on retarded persons in its care*fn2 without adequately attempting to ascertain their wishes or consult with family members. Plaintiffs assert these claims on their own behalf as well as for a putative class of all mentally retarded persons who have received, or will receive, habilitation services from the District of Columbia and for whom District officials have consented to elective surgical procedures.*fn3

Presently before the court are plaintiffs' amended motion for class certification*fn4 [#101] and plaintiffs' motion for partial summary judgment [#103]. Upon consideration of the motions, the oppositions thereto, and the record of the case, the court concludes that the motions should be granted.


A. History of the District's Consent Policy

Although not the written policy of the District before April 1990, it was the "custom" of the superintendent of Forest Haven, a MRDDA facility that provides services to the mentally retarded, to sign consents for elective surgery without having been appointed guardian and without having consulted with the person having surgery. Pls.' Ex. 6 at 335.*fn5 Rather, the superintendent would approve elective surgical procedures based on the recommendations of a medical officer. This informal policy was in effect since at least 1978.

In April 1990, the longstanding policy of having the Forest Haven superintendent consent to elective surgery on mentally retarded citizens was set forth in writing in Policy H-18. Policy H-18 required that, for "treatment and non-invasive diagnostic procedures," "[i]nformed consent must be given by the parent or Superintendent/Guardian." Pls.' Ex. 2 at 1. While the policy noted that "[f]amily contact is attempted," Policy H-18, like its informal predecessor policy, essentially outlined a consent mechanism for the agency's Superintendent alone, who, "on recommendation of the primary care physician, dental officer, or the Chief of Health Services signs the authorization form . . . granting the necessary permission for treatment." Id.

A revised policy, Policy H-6, dated January 15, 1992, replaced Policy H-18. While the new policy incorporated Policy H-18's language regarding obtaining consent for "treatment and non-invasive diagnostic procedures," Policy H-6 stated that "[i]nformed consent must be given by the parent or Guardian," eliminating the "Superintendent" as an independent provider of informed consent. Pls.' Ex. 3 at 1. Unlike its predecessor, H-6 also included provisions for "elective surgery, dental treatment or invasive diagnostic procedures," noting that for such procedures the "MRDDA Administrator is responsible for signing the informed consent form . . . which grants permission for the medical treatment." Id. The 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 2. Without establishing an order of priority for giving consent, or discussing the interrelation between the Administrator's consent authority and the family's, Policy H-6 also provided that "[i]nformed consent obtained from the family must have two staff signatures" on the consent form. Id.

Policy H-6 received considerable scrutiny from this court. In Boyd v. Howard Univ., Civil Action No. 97-2567, Mem. Op. (D.D.C. Dec. 23, 1999), a suit was brought on behalf of a mentally retarded woman under MRDDA's care against the agency, alleging that in consenting on her behalf for elective surgical procedures, MRDDA violated her substantive and procedural due process rights. In granting summary judgment for the Boyd plaintiffs on their Section 1983 claim, the court held that, by failing to "incorporate[] any attempt to include [the patient's] desires" when granting consent for surgical procedures, MRDDA "flatly violated" both the substantive and procedural due process rights of the persons under its care. Id. at 21--22.

In 1998, Policy H-6 was superseded by a policy entitled "Consent for Health Care Decisions" ("1998 Policy"). Pls.' Ex. 4. The 1998 Policy required that MRDDA obtain information regarding: (1) "a customer's incapacity to consent, pursuant to Sec. 21-2204 of the Health Care Decisions Act of 1988"; (2) the identities of known family members; (3) "the efforts to locate family members, even if the attempts were unsuccessful"; and (4) the physicians and medical procedures involved. Id. at 2. The 1998 Policy also directed MRDDA case managers to "search, identify and/or verify information on any available family member." Id. Once such efforts are exhausted, the 1998 Policy provided different procedures for obtaining consent depending upon two factors: whether MRDDA can locate family members to provide consent, and whether the medical procedures for which consent is needed are "emergency" or "non-emergency." Id. at 3--5. Whether the procedure is emergency or non-emergency, if MRDDA case workers locate family members, the treating physician "will then be advised that he or she should contact the family member for the consent," with MRDDA limiting its own role to "monitor[ing] the situation and [] obtain[ing] the necessary consents to allow MRDDA access to the medical records." Id. at 3.

For a non-emergency procedure, if "a family member(s) is not located or refuse to consent to the medical or dental procedure," MRDDA then requests information from the treating physician, including "a statement as to the urgency of the medical or dental procedure," "a confirmation that the health care provider has discussed the procedure with the customer," and copies of two certifications of incapacity. Id. at 4. MRDDA (through the medical staff of its Clinical Services Division) then prepares a package of information including the materials provided by the physician, which it then forwards to the Office of Corporation Counsel for the District of Columbia, "with a cover letter requesting the appointment of a guardian for the customer." Id. at 5.

The 1998 Policy was itself replaced by yet another policy, this one titled "Securing Medical and Dental Care for MRDDA Consumers," and dated effective January 1, 2003 ("2003 Policy"). Pls.' Ex. 5. The 2003 Policy is much more expansive than its predecessors, covering topics such as quality assurance, medical standards, and records retention. Insofar as the issues raised by plaintiffs' complaint are concerned, the relevant section of the 2003 Policy is Section VIII, "Consent and Do Not Resuscitate Orders." Id. at 8--9. The 2003 policy indicates that "[e]fforts should be made to provide information and explanations at the level of customer comprehension," and that family members should be notified of a contemplated medical procedure and "given an opportunity to grant consent." Id. In such instances, the 2003 Policy mirrors the instructions of its immediate predecessor. 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." The MRDDA Administrator testified that the 2003 Policy is "the same" as the 1998 Policy, Pls.' Ex. 1 at 55, 104, and the District stipulated to that fact. Id. at 117. The Administrator also testified that the 2003 Policy is "in effect today." Id. at 29.

B. Substituted Judgment Standard

"Every person has the right, under the common law and the Constitution, to accept or refuse medical treatment. This right of bodily integrity belongs equally to persons who are competent and persons who are not." In re A.C., 573 A.2d 1235, 1247 (D.C. 1991).*fn6 When a person is incompetent, or when the court is unable to determine the person's competence, "the substituted judgment procedure must be followed," id., because it is the procedure which "most clearly respects the right of the patient to bodily integrity." Id. at 1249. When applying substituted judgment, a legal concept originating in English common law,*fn7 "as nearly as possible, the court must ascertain what the patient would do if competent." Id. In undertaking this inquiry, which is "primarily a subjective one," id., "the court must consider the totality of the evidence," including the patient's value system, goals, information provided by the patient's family, and, if applicable, any past decisions the patient may have made regarding medical care. Id. at 1250--51. Finally, if an examination of these sources is insufficient "to determine the subjective desires of the patient," the court may "supplement its knowledge about the patient by determining what most persons would likely do in a similar situation." Id. at 1251.

District of Columbia law, D.C. Code § 21-2210, also might be read to incorporate the substituted judgment standard.*fn8 Section 21-2210 provides that "[a] decision to grant, refuse, or withdraw consent . . . shall be based on the known wishes of the patient or, if the wishes of the patient are unknown and cannot be ascertained, on a good faith belief as to the best interests of the patient." D.C. Code § 21-2210(b).*fn9 The statute also provides a hierarchy of the persons who may provide consent for an incompetent person, starting with a court-appointed guardian or conservator, and descending to a spouse or domestic partner, an adult child, a parent, an adult sibling, a "close friend," and the patient's "nearest living relative." Id. § 21-2210(a).

In 1998, the Council for the District of Columbia passed Act 12-554, the "Mentally Retarded Citizens Substituted Consent for Health Care Decisions Emergency Amendment Act of 1998" ("Emergency Act"). Because these emergency enactments are only effective for 90 days, the Council has periodically renewed them; the most recent re-authorization of the Emergency Act took effect on January 19, 2005.*fn10 The Emergency Act provided that the MRDDA Administrator

is authorized to grant, refuse, or withdraw consent on behalf of a customer with respect to the provision of any health care service, treatment, or procedure; provided, that 2 licensed physicians have certified in writing that the health care service, treatment, or procedure is clinically indicated to maintain the health of the customer.

Emergency Act A16-0006, § 3(a). Given the sunset provision in all emergency legislation passed by the D.C. Council, the January 19, 2005 Emergency Act is no longer valid. The parties have not presented any indication that the Act has since been renewed, nor has the court been able to find any such indication on its own. Accordingly, this legislation does not currently affect the District's legal obligations.


A. Class Certification

Plaintiffs seek class certification and the following relief for themselves and for the putative class: (1) monetary relief; (2) injunctive relief "barring the District of Columbia from any further utilization of the current policy or any other policy that allows city officials to consent to elective surgical procedures for plaintiffs and their fellow Class members, without due process of law"; and (3) declaratory relief, in the form of a declaration providing "that the policy of the District of Columbia which authorizes city officials to consent to elective surgical procedures for developmentally disabled individuals violates plaintiffs' and Class members' liberty interest to accept or refuse medical treatment and is therefore an unconstitutional infringement of the substantive and procedural due process rights of plaintiffs and their fellow Class members." Am. Compl. at 16, ¶¶ 2-5.

As the party moving for class certification, plaintiffs bear the burden of establishing that the requirements for class certification, as set forth in Rule 23 of the Federal Rules of Civil Procedure, have been satisfied. See Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 614 (1997). Plaintiffs, therefore, must show that they satisfy all four prerequisites of Fed. R. Civ. P. 23(a). Hartman v. Duffey, 19 F.3d 1459, 1468 (D.C. Cir. 1994); In re Vitamins Antitrust Litig., 209 F.R.D. 251, 256 (D.D.C. 2002). These requirements are: (1) that the class is so numerous that joinder of all members is impracticable; (2) that there are questions of law or fact common to the class; (3) that the claims or defenses of the representative parties are typical of the claims or defenses of the class; and (4) that the representative parties will fairly and adequately protect the interests of the class. FED. R. CIV. P. 23(a). In addition, plaintiffs also bear the burden to show that the class falls within at least one of the three categories set forth in Rule 23(b). A district court exercises broad discretion in deciding whether plaintiffs have carried their burden. Hartman, 19 F.3d at 1471 (citing Bermudez v. United States Dep't of Agric., 490 F.2d 718, 725 (D.C. Cir. 1973)).

The question of class certification is a preliminary question distinct from the merits of the case. Eisen v. Carlisle & Jacquelin, 417 US 156, 178 (1974). As the Supreme Court pointed out in Eisen, when "determining the propriety of a class action, the question is not whether the plaintiff or plaintiffs have stated a cause of action or will prevail on the merits, but rather whether the requirements of Rule 23 are met." 417 U.S. at 178 (internal quotation omitted). While courts may not conduct a preliminary inquiry into the merits of a suit in order to determine whether it may be maintained as a class action, id. at 177, the court may consider matters beyond the pleadings ...

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