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Doe ex rel. Tarlow v. District of Columbia

United States District Court, District of Columbia

February 1, 2013

Jane DOE I, by her conservator, Linda TARLOW, et al., Plaintiffs,

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Harvey S. Williams, Harvey S. Williams, Washington, DC, Irvin V. Cantor, Herman Aubrey Ford, III, Cantor, Arkema, Robert A. Dybing, Thompson & McMullan, P.C., Richmond, VA, for Plaintiff.

Robert C. Utiger, Andrew J. Saindon, Ellen A. Efros, Richard S. Love, District of Columbia Office of the Attorney General, Washington, DC, for Defendant.



In 2001, three women with significant intellectual disabilities brought this case against the District of Columbia, which cared for them through the agency now known as the Department on Disability Services. The plaintiffs alleged that the District improperly authorized elective medical procedures to be performed on them, and thereby violated their constitutional rights. After many years and the death of two plaintiffs, whose estates have maintained the action, the District now moves to dismiss the second amended complaint. For the reasons stated below, that motion will be denied and this case brought to a close as expeditiously as the court can fairly manage.


The plaintiffs in this case, who are proceeding by pseudonym, each allege that the District illegally authorized elective surgical procedures to be performed on them, in violation of their constitutional rights. Two plaintiffs, known as Jane Does I and III, had their pregnancies aborted in 1984 and 1978, respectively. 2d Am. Compl. ¶¶ 14-20. In 1994, Jane Doe II underwent eye surgery to correct her extropia, a condition in which one eye deviates from the other. Id. ¶¶ 47-49. Jane Does I and III chiefly contend that their abortions were illegally authorized because constitutionally-required procedural protections were not observed. Id. ¶¶ 28, 30. Jane Doe II primarily argues that the

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District was required to obtain consent from her mother, who was her court-appointed advocate. Id. ¶¶ 48, 57. [1]

The plaintiffs began this suit as a challenge to the policies under which the District provided substituted consent to medical procedures for intellectually disabled patients who were under its care and unable to make their own medical decisions. Proceeding under 42 U.S.C. § 1983, the plaintiffs sought both damages and an injunction barring the District from continuing to use the substituted consent policy that was then in force. The Honorable Henry H. Kennedy, Jr. granted the injunction, concluding that D.C.Code § 21-2210(b) required the District to make an effort to determine the wishes of an incompetent patient with regard to an elective surgery, rather than simply acting in the patient's best interests. Because the District did not, under its then-current policy, inquire into the subjective wishes of incompetent patients in its care, Judge Kennedy found that it violated those patients' constitutionally-protected liberty interests in bodily integrity, as established by local law. See Does v. District of Columbia, 374 F.Supp.2d 107, 112-16 (D.D.C.2005) (preliminary injunction); Does I Through III v. District of Columbia, 232 F.R.D. 18, 32-34 (D.D.C.2005) (permanent injunction).

On appeal, the D.C. Circuit vacated the injunction. After plaintiffs' counsel represented that their clients " lack the mental capacity to make healthcare decisions," the Circuit set out to determine whether local statutory law, on the one hand, or federal constitutional law, on the other, requires the District " to consider the healthcare wishes of intellectually disabled patients (such as the plaintiffs here) who have always lacked mental capacity to make healthcare decisions for themselves." Doe ex rel. Tarlow v. District of Columbia, 489 F.3d 376, 378, 380 (D.C.Cir.2007). The Circuit found that the answer to both inquiries is " No." It explained that, under District law,

a " decision to grant, refuse or withdraw consent" on behalf of a patient who lacks the mental capacity to make medical decisions " shall be based on the known wishes of the patient" if those wishes are ascertainable. D.C.Code § 21-2210(b). But " if the wishes of the patient are unknown and cannot be ascertained," the decision " shall be based on ... a good faith belief as to the best interests of the patient." Id. It is undisputed here that plaintiffs have always lacked " sufficient mental capacity to appreciate the nature and implications of a health-care decision, make a choice regarding the alternatives presented or communicate that choice in an unambiguous manner." Id. § 21-2202(5); see also Does I Through III v. District of Columbia, 232 F.R.D. 18, 32 (D.D.C.2005); Tr. of Oral Arg. at 21, 27. Because plaintiffs have never been able to make informed choices regarding their medical treatment, their true wishes with respect to a recommended surgery " are unknown and cannot be ascertained" for purposes of § 21-2210(b). Therefore, the District of Columbia is correct that the " best interests" standard applies to the ... plaintiffs in this case.

Id. at 381 (citations altered and emphases deleted) (first ellipsis in original). The Circuit went on to hold that the then-current consent policy complied with both § 21-2210(b) and the constitutional guarantee of due process. Id. at 382-84. It therefore directed the entry of judgment

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for the District " with respect to plaintiffs' claims for declaratory and injunctive relief." Id. at 384. The Circuit concluded by noting that " damages claims brought by Jane Doe I, Jane Doe II, and Jane Doe III based on alleged incidents that occurred more than a decade ago, before the adoption of the [then-current substituted consent] policy" were still pending before the district court. Id. The Circuit recognized that the damages claims were not before it, and " therefore [did] not address them." Id.

On remand, Judge Kennedy granted summary judgment to the District on most of the damages claims. Although the plaintiffs argued that the District only acquired the authority to provide substituted consent for incompetent patients in 1998,[2] Judge Kennedy found that the contrary holding was implicit in the Circuit's opinion denying injunctive relief. Relying on the law-of-the-case doctrine, he ruled that, although the Circuit had not addressed the plaintiffs' " damages claims ... based on alleged incidents that occurred more than a decade ago, before the adoption" of the then-current substituted consent policy, Doe, 489 F.3d at 384, it nonetheless " decided that the District of Columbia was legally authorized to consent to [intellectually disabled patients'] surgeries" during that time period, Does v. District of Columbia, 593 F.Supp.2d 115, 125 (D.D.C.2009). Judge Kennedy therefore granted summary judgment to the District on the question of its authority to consent to elective surgery for the patients in its care. Id. But he found that " [a] genuine issue of material fact remains in dispute as to whether the District of Columbia had a custom or policy of failing to obtain consent from, or ignoring or overriding the wishes of" family members who were authorized to give or withhold consent to surgeries under D.C.Code § 21-2210, as Jane Doe II alleged. Id.

Judge Kennedy later granted the plaintiffs leave to amend their complaint to add the claim that " the abortions performed on Jane Does I and III were unauthorized because ... only a court can properly consent to the performance of an abortion on an incompetent woman." Does v. District of Columbia, 815 F.Supp.2d 208, 214 (D.D.C.2011). Noting that current District law prohibits the authorization of abortions without a court order, id. at 218 (citing Doe, 489 F.3d at 379 (citing D.C.Code § 21-2211)), but that the plaintiffs' abortions took place years before that law was enacted, Judge Kennedy turned to the argument " that constitutional due process requires a court order before an abortion can be performed upon a woman incompetent to consent," id. Observing that the question was a matter of first impression in the federal courts and citing federal and state cases that have found " a federal constitutional right to judicial oversight of involuntary sterilizations of the mentally ill and mentally disabled," Judge Kennedy concluded that " given the unsettled state of the law" in this area, the novel claim would " be better tested when fully briefed." Id. at 219-20. The second amended complaint also reiterated the claims brought by ...

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