Thursday, April 25, 2013

Parents arrested again for allowing child to die for religious reasons; should they be liable in tort?

Back in 2009 I wrote a series of comments on whether we should recognize a cause of action against parents who allow their children to die due to their refusal to seek medical attention for religious reasons. See here and follow the links. At the time I was following all the publicity surrounding criminal trials in Wisconsin and Pennsylvania against the parents of children who had died under those circumstances.
The parents in the Pennsylvania case were found guilty of involuntary manslaughter and child endangerment but were only placed on probation conditioned on maintaining medical treatment for their children.
Today it is being reported that the parents have been arrested again after they allowed another child to die after refusing basic medical care. See here, here and here.
So let me repeat part of my comment from October 2009: 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, 530 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.

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