JANE M. TREWORGY, as PERSONAL REPRESENTATIVE of the ESTATE OF PAUL F. TREWORGY, and INDIVIDUALLY, JOHN F. TREWORGY, Plaintiffs,
COMMISSIONER MARY C. MAYHEW, in her fiduciary capacity as PUBLIC GUARDIAN for PAUL F. TREWORGY, JODI INGRAHAM, MARTHA PERKINS, Defendants.
C. MALLONEE, JUSTICE
the Court is a motion to dismiss filed on February 1, 2016,
on behalf of Defendants Mary C. Mayhew, Martha Perkins, and
Jodi Ingraham. The court conducted a hearing on May 19, 2016.
The matter is now in order for decision, The court thanks
both counsel for thorough written submissions and for an
illuminating and responsive oral argument. Having considered
all of the material before it, the court concludes the motion
must be and hereby is GRANTED.
action is based on allegations of improper conduct by
representatives of the Maine Department of Health and Human
Services ("DHHS") in an adult protective custody
case. The factual summary that follows assumes, as it must
when the court addresses a motion to dismiss, that all of the
allegations in the complaint are true.
Jane Treworgy was married to Paul Treworgy, the subject of
Defendant's alleged actionable conduct, until Mr.
Treworgy died. The couple had a son, John Treworgy. (PL's
Compl. ¶¶ 1, 2, 13.) Before Paul died, he used a
Maine advance healthcare directive form, dated June 19, 2010,
to appoint Jane as his agent to make health care decisions.
John was designated to assume this duty should Jane be unable
to serve. (Id. ¶¶ 1-2.) Paul expressed a
desire to be kept alive as long as possible within the limits
of generally accepted health care standards. He specifically
requested that he not receive morphine or other opiates
unless he was in extreme pain. (Id. ¶ 17.)
2010 and his death on October 29, 2011, Paul suffered from
medical conditions that included prostate cancer, dementia,
lower limb contracture, incontinence, and immobility.
(Id. ¶ 13.) He was from time to time a patient
at several health care facilities. (Id. ¶¶
about August 29, 2011, Jane called The Eastern Maine Medical
Center in Bangor to request home services and a home health
aide because Paul was beginning to develop bedsores.
(Id. ¶ 22.) EMMC got in contact with DHHS Adult
Protective Services (APS) and asked that it perform a home
visit to evaluate Paul's safety. (Id., ¶
23.) Pending the evaluation, EMMC placed Jane's
application for services in a folder and did not provide her
with any prescriptions or supplies for Paul. (Id.
¶ 24.) From August 29, 2011, to September 13, 2011, Jane
made several calls to EMMC asking for prescriptions and for
help attending to Paul's hygiene. (Id.
September 13, 2011, Defendant Ingraham visited Paul at home.
She reported to EMMC that the Treworgys were "doing the
best they can with limited resources" and that Paul was
"of sound mind to make the choice to stay in the
home." (Id. ¶ 30.) Ingraham did not
identify herself as an employee of APS during the home visit.
Plaintiff thought Ms. Ingraham had come to the Treworgys'
house to provide the services previously requested.
(Id. ¶ 31.) Defendant Perkins told EMMC that
DHHS had tried twice, before Ingraham's visit, to
evaluate the home but had been denied access. (Id.
¶ 26.) Plaintiffs claim that DHHS opened a
"secret" file on Paul at this time. (Id.
September 13, 2011, Paul was transported by ambulance to St.
Joseph Hospital because he was suffering from a urinary tract
infection, fever, and possible pneumonia. (Id.
¶ 34, ) On September 26, 2011, before Paul's
discharge from the hospital, Ingraham told Jane "it was
her opinion Paul needed to go to a nursing home, and that
Jane had better agree 'or the State would step in to make
the decision for him.'" (Id. ¶ 38.)
Jane agreed and told Ingraham she needed a few days to tour
various facilities in the area. (Id. ¶ 41.)
assert that on September 28, 2011, Defendant Ingraham told
Jane and John, falsely, that she had taken guardianship of
Paul. (Id. ¶ 44.) The same day, Defendant
Perkins signed an Acceptance of Appointment of Public
Guardian and thereby became Paul's guardian. This
application was supported by Ingraham's Affidavit in
Support of Temporary Public Appointment which, Plaintiffs
allege, included "numerous false, misleading, and
damaging statements, " including the false claim that an
emergency existed. (Id. ¶¶ 45-48.)
September 30, 2011, the Penobscot County Probate Court
conducted an emergency hearing on the Petition for
Appointment of Public Guardian. (Id. ¶ 60.)
Plaintiffs attended the hearing but were told by the judge
that they were not to ask any questions or speak unless
spoken to. (Id. ¶ 61.) The same day, the
Probate Court signed an order granting custody of Paul and
authority to make all his medical decisions to Defendant Mary
Mayhew as Public Guardian. (Id. ¶ 63.)
September 29, 2011, before the Probate Court entered its
order granting Ingraham, Perkins, and/or the Public Guardian
authority to handle Paul's medical decisions, Defendants
ordered that Paul be transferred to Eastside Rehabilitation
and Living Center (Eastside) and began making all decisions
about his care. (Id. ¶ 62.) During Paul's
stay at Eastside, Plaintiffs were allowed to visit him but
were not allowed to be alone with him. Neither were they
given any information regarding his healthcare, (Id.
¶¶ 65, 68.) Plaintiffs allege that during
Paul's stay at Eastside Defendants made decisions about
his healthcare that were not in good faith. (Id.
¶ 66.) Plaintiffs further allege that the nursing home
was infested with maggots and had been cited several times
for abuse, neglect, and deficiency in care. (Id.
Treworgy died on October 29, 2011. (Id. ¶ 72.)
13, 2014, Plaintiffs filed a civil action in United States
District Court for the District of Maine. The complaint named
as defendants Commissioner Mary Mayhew (defendant in this
action), Jodi Ingraham (defendant in this action), County
Commissioners for Penobscot County, Maine, and Susan Almy,
the Penobscot County Registrar of Probate. Treworgy
v.Mayhew, No. L14-CV-97-GZS, 2014 WL ...