The opinion of the court was delivered by: Henry H. Kennedy, Jr. United States District Judge
MEMORANDUM OPINION AND ORDER
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 Disabilities Administration ("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 judgment 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 Columbia*fn1 and were institutionalized in District of Columbia facilities beginning in the 1960s.*fn2 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.
B. District of Columbia Law
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 ...