Sunday, October 11, 2009

Should there be a cause of action when parents fail to seek medical help for religious reasons?

At the beginning of the year, I posted some comments on the issue of whether there should be a cause of action for injuries to a child when parents refuse medical services for religious reasons. (see here). That post was based on an article about a criminal case that had been filed in Wisconsin against the parents of a child who died when they refused to seek medical treatment for her.

The Wisconsin case was finally decided last week, just within a day of another similar case in Pennsylvania. In both cases the courts imposed light criminal penalties on the parents. In both cases, it is likely that the children would have recovered fully had they been given medical attention, but the parents declined to get medical attention in favor of engaging in prayer. (For a comment on the issues raised by the fact that courts often impose light sentences in cases like these go here and here.)

If states have the authority to impose criminal sanctions for conduct that the actors claim is based on religious faith, couldn't states recognize a cause of action in tort against the parents, or the church they belong to, in a case like this?

I have not updated my research on this subject recently, but as far as I remember, the last time I taught the subject, there were very few cases that imposed civil liability in similar cases. Two cases cited often on this issue are Lundman v McKown, 520 NW2d 807 (Minn App 1995) and Quigley v First Church of Christ Scientist (Calif App 1998). In both cases, the courts rejected the cause of action against the church itself, but in Lundman the court recognized a claim against some members of the church who, according to the court, owed a duty to the child.

If you are interested in this subject you may also want to take a look at a short article called Life and Death Laywering: Dignity in the Absence of Autonomy by Theresa Stanton Collette, published in the Journal of the Institute for the Study of Legal Ethics in 1996, which explores the duty of the attorneys appointed to represent children whose parents want to deny them access to medical treatment.

UPDATE 4/25/13:  The parents in the Wisconsin case have just been arrested again after another one of their children died. See here.

1 comment:

Anonymous said...

I've thought about this issue before when it's come up on the news, and I vehemently believe that liability ought to be imposed on the parents. Not to would be follow the "Menlove"/subjective rationale which simply holds no water. It matters not what the parents believed, but what a reasonable, similarly situated parent would do. The "I THOUGHT I was doing the right thing" argument is as baseless in this situation as it was in Menlove.

-Sarah