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No. 123, September Term, 2001 IN RE: SOPHIA E. FOLEY, AN ADULT

[Holds That The Circuit Court's Interlocutory Order For A Medical Examination Was Not Appealable Under The Collateral Order Doctrine]

IN THE COURT OF APPEALS OF MARYLAND

No. 123

September Term, 2001 _________________________________________

IN RE: SOPHIA E. FOLEY AN ADULT

__________________________________________ Bell, C.J. Eldridge Raker Wilner Cathell Harrell Battaglia, JJ. __________________________________________

Opinion by Eldridge, J. __________________________________________

Filed: April 4, 2003

The issue in this case is whether the Circuit Court's interlocutory order for a medical examination, under the circumstances here involved, is appealable under the collateral order doctrine. The Court of Special Appeals held that the order was appealable. We disagree. Sophia E. Foley, a sixty-two year old woman, resides in Annapolis, Maryland, with her husband and seventeen-year-old daughter. In 1988, Sophia's husband,

Michael Foley, began noticing that Sophia suffered from lapses in memory and confusion. Sophia's memory loss became progressively worse, and, in 1992, one of her physicians determined that Sophia suffered from dementia, most likely of the Alzheimer's type. Also in 1992, Sophia executed a health care power of attorney designating her husband, Michael, as her health care agent. In 1997, one of Sophia's sisters, Eugenia Berg, filed in the Circuit Court for Anne Arundel County a guardianship petition, alleging that Sophia's dementia was caused by Lyme disease and that the health care Sophia had been receiving was inadequate because Michael failed or refused to have her tested for Lyme disease. Shortly thereafter, Michael had Sophia tested for Lyme disease, and the particular tests administered to her indicated that she was not infected by Lyme disease. Subsequently, after a hearing, the Circuit Court dismissed the guardianship petition. In 2000, Eugenia Berg instituted the present action by filing in the Circuit Court for Anne Arundel County a new guardianship petition, seeking appointment as coguardian of the person of Sophia. She designated as "interested persons" herself, three other sisters of Sophia, Michael, Sophia's daughter, Sophia's father, and the Director

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of the Anne Arundel County Department of Social Services. Eugenia alleged that Michael had failed to pay for Sophia's adult day care at the Deerfield Adult Day Care Center, although Eugenia had provided him with money to do so. Later, Eugenia Berg filed in the guardianship case a motion pursuant to Maryland Rule 2-423 for an examination and testing of Sophia.1 Eugenia asserted that an examination was needed to determine whether Sophia had Lyme disease or other medical conditions that were causing her dementia and for which she was not being treated. Eugenia's position and Michael's response were summarized by the Court of Special Appeals as follows:

"Eugenia alleged that the Lyme disease tests performed on Sophia in 1997 were not clinically sensitive enough, or were performed too long after exposure, to detect the presence of Borrelia burgorferi, the agent that causes Lyme disease. "Eugenia*s motion for physical examination and testing sought to have Sophia retested for Lyme disease under a protocol prescribed by Eugenia*s medical experts, Ritchie S. Shoemaker, M.D., and Anthony L. Lionetti, M.D. The testing protocol called for the use of polymerase chain reaction ("PCR") DNA testing and
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Maryland Rule 2-423 states as follows: "Rule 2-423. Mental or physical examination of persons. When the mental or physical condition or characteristic of a party or of a person in the custody or under the legal control of a party is in controversy, the court may order the party to submit to a mental or physical examination by a suitably licensed or certified examiner or to produce for examination the person in the custody or under the legal control of the party. The order may be entered only on motion for good cause shown and upon notice to the person to be examined and to all parties. It shall specify the time and place, manner, conditions, and scope of the examination and the person or persons by whom it is to be made. The order may regulate the filing and distribution of a report of findings and conclusions and the testimony at trial by the examiner, the payment of expenses, and any other relevant matters."

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for repeating the Western blot blood tests performed in May 1997. The protocol would require that a series of ten urine specimens and a single blood specimen be taken from Sophia over a ten-week period. "Michael filed an opposition to the motion for physical examination and testing. Eugenia*s motion, Michael*s opposition, and supplemental memoranda filed by each were supported by affidavits of their respective expert witnesses. Drs. Shoemaker and Lionetti, and Zdzislaw Fiutowski, M.D., a general practitioner who had examined Sophia in 1994 and 1995, in Michigan, submitted affidavits in support of Eugenia*s motion. They opined, in essence, that symptoms of Lyme disease and symptoms of Alzheimer*s disease can be similar; that advanced testing techniques such as PCR DNA testing are more effective in diagnosing Lyme disease than are the tests Sophia underwent [in] 1997; and that, if Sophia were found to be infected by the agent that causes Lyme disease, she could be treated for it. "Dr. Fiutowski did not opine about whether Sophia*s dementia would lessen or improve if she were treated for Lyme disease. Dr. Lionetti addressed that topic in his affidavit, saying only, `One would hope to see improvement in [Sophia*s] neuropsychological status within three months to a year of successful therapy.' He acknowledged, however, that therapy is not always successful, i.e., that it does not always result in the patient no longer being infected with the agent that causes Lyme disease. In his affidavit, Dr. Shoemaker observed: `What benefit will come to Mrs. Foley if she is tested for Lyme? I have nothing to correct the progressive cerebral atrophy of Mrs. Foley . . . Mrs. Foley won * t regrow her atrophic brain. Mr. Foley won*t have his wife back to care for his daughter.' "Michael submitted affidavits and/or deposition testimony by Dr. Blum, George C. Samaras, M.D. (another of Sophia*s treating doctors), and Andrew R. Pachner, M.D. Dr. Samaras attested not only that Sophia had tested negative for Lyme disease under the CDC protocol administered in 1997 but also that in the 8 years she had been his patient, she never had presented any clinical symptoms of Lyme disease. Dr. Samaras opined that, based on his experience in treating Sophia, she would need to be sedated even to draw a blood sample.

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"In Dr. Blum's deposition testimony, from 1997, he opined that Sophia has Alzheimer's disease, that she does not have Lyme disease, that her prognosis is poor, and that Alzheimer's disease only can be definitively diagnosed on autopsy. Dr. Pachner opined that to a reasonable degree of medical certainty, and based on the tests administered in 1997, Sophia does not have Lyme disease and Lyme disease `can be ruled out as a cause of [her] dementia.'"

The Circuit Court held hearings on the motion for an examination and testing on two different dates, and thereafter the court issued an opinion and an order granting the motion. Michael filed a motion for reconsideration which the Circuit Court denied, and thereafter he filed a notice of appeal. The Court of Special Appeals, in an unreported opinion, held that the order for an examination was appealable under the collateral order doctrine, held that the Circuit Court had abused its discretion in ordering an examination, and vacated the Circuit Court's order. Eugenia filed a petition for a writ of certiorari, challenging both the Court of Special Appeals' holding that the order was appealable and the appellate court's holding that the Circuit Court's order represented an abuse of discretion. This Court granted the petition, In re Sophia Foley, 368 Md. 239, 792 A.2d 1177 (2002), and, as previously indicated, we shall reverse on the ground that the order was not appealable. Accordingly, we shall not reach the merits of the controversy. The parties, as well as the Court of Special Appeals, all agreed that the Circuit Court's order was not appealable as a final judgment in the traditional sense, that the order was entirely interlocutory, and that it was not an appealable interlocutory order under Maryland Code (1974, 2002 Repl. Vol.),

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