High Court Rejects Lyme Test Case- Maryland
High Court Rejects Lyme Test Case- Maryland
High court rejects Lyme disease testing case
By Alisa Bralove, Legal Affairs Writer Daily Record
Thursday, October 16, 2003 The Supreme Court has decided not to get in the middle of a family dispute over whether a 64-year-old Annapolis woman must undergo court-ordered testing for Lyme disease.
Michael Foley�s wife, Sophia Foley, began experiencing progressive memory loss 15 years ago and was diagnosed with early onset Alzheimer�s disease.
Her sister, Eugenia Berg, believes the problem stems from undiagnosed Lyme disease, despite initial test results to the contrary.
After Michael Foley rejected further testing, Berg got a Montgomery County judge to order weekly blood and urine tests.
Michael Foley argues that further tests would violate the couple�s liberty rights because his wife signed an advance directive under the Health Care Decisions Act, granting him power of attorney over her health care decisions.
Michael W. Davis, the husband�s attorney, said he is worried the high court�s lack of guidance on the matter may leave advance directives in limbo.
�My concern is that the Foley case, as it now stands, may make it very uncertain when a person does an advance directive, whether that person�s wishes will be fulfilled,� he said. �
As an estate planning attorney, as an elder law attorney, I�m very disturbed by where we are right now.�
The case dates back to 2000 when, believing her sister was not receiving proper medical care, Berg filed a petition for guardianship. She also sought a court order to force Sophia Foley to undergo testing for Lyme disease.
An Anne Arundel County Circuit Court judge granted Berg�s motion in March 2001, even though Sophia Foley had previously named her husband as her health care agent and the results from her 1997 Lyme disease test proved negative.
On appeal, the Court of Special Appeals sided with Michael Foley, agreeing that the interlocutory order could be appealed under the state�s collateral order doctrine.
The state�s highest court took a different view and said the order failed to fall within the doctrine�s statutory exceptions to the final judgment rule.
In August, Michael Foley petitioned the Supreme Court, asking it to address whether there is a federal constitutional right to appeal an interlocutory order when it affects a fundamental liberty interest such as this.
On Tuesday, the high court said it would not hear the case.
�We�re not surprised,� said Berg�s attorney, Mitchell Y. Mirviss. �The issue presented in our view was merit-less for Supreme Court consideration. The Supreme Court has repeatedly held that there is no constitutional right to an appeal.� Davis said the court�s decision Tuesday was both frustrating and disappointing. �
The disappointing part is clearly that the Court of Appeals and Court of Special Appeals and circuit court have never addressed this case in light of the Health Care Decisions Act,� he said.
Davis also said he found it interesting that during oral arguments before the Court of Appeals, both Chief Judge Robert M. Bell and the opposing counsel suggested that the only way for Michael Foley to get an immediate appeal would be to ignore the order and be found in contempt.
�Very literally, my client has to put his liberty at risk to protect the liberty of his wife,� Davis said. �
Mr. Foley is simply doing what his wife would have wanted him to do � which, by the way, is exactly what I would want and what anybody else would want.�
Copyright 2003 � The Daily Record. All Rights Reserved.
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Last Updated- October 2019
Lucy Barnes
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