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Treworgy v. Mayhew

Superior Court of Maine, Penobscot

June 27, 2016

JANE M. TREWORGY, as PERSONAL REPRESENTATIVE of the ESTATE OF PAUL F. TREWORGY, and INDIVIDUALLY, JOHN F. TREWORGY, Plaintiffs,
v.
COMMISSIONER MARY C. MAYHEW, in her fiduciary capacity as PUBLIC GUARDIAN for PAUL F. TREWORGY, JODI INGRAHAM, MARTHA PERKINS, Defendants.

          ORDER

          BRUCE C. MALLONEE, JUSTICE

         Before 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.

         FACTUAL BACKGROUND

         Plaintiffs 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.

         Plaintiff 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.)

         Between 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. ¶¶ 14, 18-21.)

         On or 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. ¶25.)

         On 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. ¶¶ 32-33.)

         On 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.)

         Plaintiffs 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.)

         On 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.)

         On 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. ¶ 89.)

         Paul Treworgy died on October 29, 2011. (Id. ¶ 72.)

         On June 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 ...


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