Parents who allowed child to die for religious reasons plead guilty

A number of years ago, I posted a number of comments on the possibility of imposing civil liability on parents whose refusal to provide medical treatment to a child for religious reasons causes the child to suffer an injury (or death).  See here, here and here, for example.

I had not seen the issue in the news for a long time, but today I saw an item in the news that caught my eye:  As reported in the Daily Beast, "[t]wo members of an Oregon church that believes in faith healing pleaded guilty to negligent homicide this week in the death of their newborn daughter, who spent hours struggling to breath without ever receiving medical treatment."  You can read the full story here.

This is, of course, a criminal law matter; but it does raise the question I have asked before.  If the parents can be criminally liable for this conduct, should we recognize a civil cause of action against them for wrongful death also? 

Follow up on story re vaccines

Just to follow up on my posts regarding possible liability on parents who fail to vaccinate children, here are a few update on related issues.

On June 25, the California State Assembly passed SB 277, a bill mandating that children in day care or school be vaccinated. The bill eliminates the personal-belief and religious exemptions, leaving intact only the medical exemption.  See here, here, here and here.

Five days later, the Governor signed the bill into law.  See here and here.

Possible liability of parents for denying medical care to child due to religious reasons, and issues related to vaccines, ... again

I have posted a number of comments on the possibility of imposing liability on parents when they cause an injury to a child when refusing to provide medical care because of religious beliefs. See here.  I have also posted on the relationship of this issue and the debates on vaccines.  See here. 

Here is an update: The California state Senate just overruled a long-standing law that permitted parents with religious and philosophical reservations to send their children to public and private schools without their shots.

Slate has a recent article on the issue called "Faith Healing Kills Children."  You can read it  here.

Update on the issue of vaccines

I recently commented on whether there should a cause of action against the parents of a child who do not vaccinate their children.  See here.  In that comment I wrote that "In California, . . . a bill is making its way through the system that would allow children to opt out of mandatory school vaccinations only if they have a medical condition that justifies an exemption. (NPR has the story here.) "

As an update to the issue, here is a link to an article in the New York Times on the bill in California.  

Cause of action against parents and church for injuries caused by exorcism?

A couple of days ago I posted a comment that touched, tangentially, on the possibility of imposing liability on parents when they cause an injury to a child because of their religious beliefs.  See here.  In older posts I have discussed cases in which parents cause injuries by relying on prayer rather than medical services (see here and here, for example).

As if these cases were not disturbing enough, today comes news that "police are pursuing those responsible for the death of a 2-year-old boy at a church in Texas where the parents and pastors starved the boy to rid him of his possession by a demon."  Take a look at the story here.  Should we recognize a cause of action in tort for the wrongful death of the child?

Cause of action against parents who don't vaccinate their children?

As I am sure you know, not too long ago there was an outbreak of measles in the US. Measles, as you probably also know, is one of the most contagious diseases in the world (if not the most).  Due to the outbreak, there has been a lot of discussion on whether the state could (or should) mandate that children be vaccinated.  In California, for example, a bill is making its way through the system that would allow children to opt out of mandatory school vaccinations only if they have a medical condition that justifies an exemption. (NPR has the story here.)  Meanwhile, on the other side of the world, Australia has announced plans to halt welfare payments and childcare rebates to families who refuse to have their children vaccinated. (NPR has that story here.)

Some have argued that parents should be forced to vaccinate children, not only to protect the children from the risk of getting the disease, but also from the risk that they could spread it to others.  In response, others argue that parents should have the freedom to decide whether to vaccinate their children. 

Within this debate, however, I have not heard any discussion on whether parents who decide not to vaccinate should be held liable to anyone who gets injured because of their decision.  Should there be a cause of action against parents who decide not to vaccinate their children?  It is an interesting question that raises many issues and the answer to which depends on many factors.

The first factor to consider is the identity of the plaintiff.  Assume, for example, that the plaintiff is the son or daughter of a parent who decides not to vaccinate.  This raises the issue of parental immunity.  If the jurisdiction considers decisions about a child's health care within the types of parental decisions for which we should recognize immunity, the child would not have cause of action.

If the plaintiff is another child who gets the disease from exposure to the non vaccinated child, the issue is different.  (And, if you are wondering why the plaintiff in such a case was not vaccinated too, remember that there are many groups of children (and adults too) who can't get vaccinated or for whom vaccinations do not make a difference.  These include children that are too young, adults who are too old, and people of any age who have immune system deficiencies.)

In these types of cases, the question may revolve around the reason claimed by the parents for not vaccinating.  If that reason is based on religious practices, an interesting older case to review is Lundman v McKwon (Minn 1995).  In that case the father of an 11 year old boy sued the child's mother (who had custody of the child after their divorce) after the child died because the mother refused to provide medical care for the child based on her religious beliefs.  Finding that parents have a "special relationship" with their children, the court concluded the mother had a duty to help the child by providing medical help notwithstanding her religion.  However, to protect parental freedom of religion and to prevent results like this one,  many states have enacted statutes that provide "religious exemptions" for medical care.  (For a discussion on whether these exemptions should be eliminated you can read the five person debate in a recent NY Times "Room for Debate" piece here.) 

But my sense is that most claims for the "freedom to decide whether to vaccinate" are not based on religion but on other personal reasons, most famously the misguided and thoroughly discredited position that vaccines can cause Autism.

Given that this is not a religious claim, and, more importantly, that it is not based on credible scientific evidence, can't it be argued that parents who act upon it are being negligent because their conduct is creating an unreasonable risk of harm to others?  And, if so, can't it be argued that we should recognize a claim against them if their conduct does in fact cause an injury to another?

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.

Archdiocese of Chicago agrees to settle sexual abuse lawsuit for $3.2 million

Archdiocese of Chicago, Cardinal George, and the Catholic Bishop of Chicago have agreed to settle a claim based on the sexual abuse of a minor boy by former Rev. Daniel McCormack in the amount of $3.2 million dollars.  The victim had alleged that the Archdiocese and the Cardinal failed to remove their priest, Rev. Daniel McCormack, from access to children although they had knowledge that he had sexually abused minors. McCormack was arrested in January 2006, charged with multiple counts of criminal sexual assault and subsequently pleaded guilty to those charges in 2007.  For more on this story go here.

More on Snyder v Phelps

The SCOTUS blog offers the following update: In an article for the Washington Post, Robert Barnes cites Justice Alito’s dissent in Snyder as another example of his willingness to “strike out on his own,” especially with regard to First Amendment issues. And Barnes also suggests that Justice Alito is likely to vote to uphold the constitutionality of a California law banning the sale of violent video games to minors in another First Amendment case pending this Term, Schwarzenegger v. EMA. At TIME, Sean Gregory has a lengthy discussion of the opinion in Snyder, including reactions from the petitioner, Albert Snyder. At the Los Angeles Times, David Savage also discusses the decision in Snyder and notes that it “does not appear to affect the laws in 43 states that seek to keep the protesters away from military funerals.” At Balkinization, Jack Balkin analyzes the issues of informational privacy implicated by the Court’s in Snyder; describing the Chief Justice’s opinion as “an important enhancement of the distinction between matters of public and private concern that may lead to important new doctrinal developments in the area of personal privacy in the future.” And the Room for Debate blog of The New York Times features six opinion pieces on the decision, focusing on the question whether “emotions have a place in the First Amendment.” Amanda linked to more news about Snyder here.

Update on comments about Snyder v Phelps

As expected, the comments on Snyder v Phelps keep coming in. Go here for my previous post and here are a few new links: In the New York Times "Room for Debate" Six scholars discuss "when free speech feels wrong." The Wall Street Journal law blog has an article here. Finally, SCotUS blog offers this summary of the latest: The Court’s opinion in Snyder, a case the Washington Post’s Robert Barnes predicts is “likely to define the Term,” has produced a deluge of coverage and commentary. By a vote of eight to one, the Court held that the First Amendment shields from tort liability individuals who stage a peaceful protest on a matter of public concern near the funeral of a military service member. Chief Justice Roberts wrote the majority opinion, Justice Breyer filed a concurring opinion, and Justice Alito, the lone dissenter, filed a dissenting opinion. The opinions are available here. SCOTUSblog’s Tom Goldstein calls the decision “a resounding affirmation of the right to engage peacefully in speech, even terribly hurtful speech, on matters of public import,” and the editorial boards of many major newspapers and most commentators seem to support the outcome. But the sentiment was certainly not shared by all. Mark Sherman of the Associated Press highlights Justice Alito’s dissent — “his second solo dissent in a free-speech case in as many years” — as elevating “privacy over free speech.” Katie Couric of CBS News interviews Albert Snyder, who believes that yesterday was “a sad day for our military men and women, and their families,” and “a sad day for all Americans.” Devin Dwyer of ABC News reports that leaders of the Westboro Baptist Church have “vowed to ‘quadruple’ the number of protests at military funerals around the country” in light of the Court’s ruling, but Joan Biskupic and Kevin Johnson of USA Today note that “veterans groups and other opponents [are] vowing to step up efforts to block church followers from demonstrating at high-profile funerals and interfering with grieving military families.” The New York Times, the Los Angeles Times, the Washington Post, the Christian Science Monitor, the Baltimore Sun, the Boston Herald, the San Francisco Chronicle, the Kansas City Star, Fox News, the WSJ Law Blog, NPR, Reuters, The BLT, CNN, the Associated Press, Bloomberg, Reuters, TIME, The Atlantic, JURIST, ACSBlog, Concurring Opinions, Cato-at-liberty.org, Constitutional Law Prof Blog, Courthouse News Service, and FIRE, are just some of the media outlets and blogs that have additional coverage of, and commentary on, the decision.

Supreme Court decides Snyder v Phelps: Right to protest at funerals is protected by the First Amendment

The Supreme Court announced today its decision in Snyder v Phelps. This is the case that asked whether the First Amendment allows the family of an American soldier, killed in Iraq, to recover damages for intrusion and intentional infliction of emotional distress from the Westboro Baptist Church. Members of the Church routinely demonstrate at funerals and other events to promote their message that God is punishing the United States for its acceptance of homosexuality using their now well known slogan "Thank God for Dead Soldiers." Snyder sued for intentional infliction of emotional distress and ultimately was awarded $5 million in damages. But a federal appeals court overturned the judgment on First Amendment grounds, saying the Constitution protected Westboro’s speech. Today, the Supreme Court affirmed this ruling. As distateful as it sounds, this is the correct decision and it is consistent with First Amendment jurisprudence and the values it stands for. The Court's opinion is available here. For background information, including links to articles and videos on the case go here, here and here. To listen to the oral arguments before the Supreme Court go here. As for today's ruling, the Blog of the Legal Times reports (here) that Chief Justice John Roberts Jr, who wrote the majority opinion, announced it from the bench in an almost sorrowful tone, as if regretting that the Court was in the position of protecting such offensive speech. But he said that "as a nation we have chosen ... to protect even hurtful speech on public issues to ensure that we do not stifle public debate." Justice Samuel Alito was the court’s lone dissenter. He concluded that “Our profound national commitment to free and open debate is not a license for the vicious verbal assault that occurred in this case.” As expected there are a lot of comments out there already and I am sure there will be a lot more in the next few days. I will keep updating the list as I see them. For the moment, here are a few links: Analyzing Alito's dissent, Jonathan Turley points out: "It is precisely the type of extreme analysis that led some of us to object to Alito’s confirmation. . . . Alito does not show how we will distinguish between types of speech that he finds brutal and acceptable. It is precisely the type of slippery slope of analysis that we sought to avoid. Alito offers little compelling analysis in erasing the bright line protecting free speech. Indeed, his conclusion appears driven more by anger than analysis. His approach comes close to a content-based approach that would deny free speech protection to those who are most in need of it. We do not need the first amendment to protect popular speech. It is there to protect those who speak against the majority — those viewed as brutal and obnoxious by people like Alito." SCotUS blog's First Reactions to Snyder Another comment on the SCtoUS blog For more updates go here CNN (in print) CNN video:

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.

Update 7/10/18:  Here is another case with the same issue, this time in Oregon: another guilty plea by the parents of a newborn baby who died after they refused medical treatment.

Cases vs the Vatican

Here is a link to an article published today (online) by the National Law Journal on the recent cases against the Vatican related for damages caused by alleged sexual abuse by priests. If you can't access the article online, you can look for it in next week's print edition of the NLJ. Last December I posted that the Sixth Circuit Court of Appeals had decided the appeal on a case called O'Bryan v Holy See recognizing a claim against the Vatican for its conduct in handling allegations of sexual abuse by certain priests. The plaintiffs sued The Vatican as a foreign governmentt and as the head of an international religious organization arguing vicarious liabilty for the acts of certain bishops and priests. Because the Vatican is considered a foreign state, it challenged the jurisdiction of the court under the Foreign Sovereign Immnunity Act. The Court dismissed some of the claims but allowed others to continue. The Court dismissed the claims for the alleged conduct of The Vatican itself, because that conduct occured outside the United States and the claims based on vicarious liability because of the conduct of the alleged sex abuser because, under state law, a priest is not an employee of The Vatican. The Court, however, did recognize a claim against The Vatican for the conduct of the achbishops, bishops and other high ranking officials of the Church because they could be considered employees. Since then, the Ninth Circuit Court of Appeals has issued a similar decision in a case called Doe v Holy See. The Court’s decision in this case, however, is different in one very important respect. Applying Oregon law, it finds that the alleged abuser is an employee of The Vatican and, thus, it recognizes a possible claim against The Vatican itself for the conduct of the priest. After Doe was decided, the lawyers who represented the plaintiffs held a long press conference which can be found in YouTube in three parts here, here and here.

Tort liability or religious rights?

Elsewhere on this blog I have posted several comments on issues related to whether there should be liability for damages caused because of the exercise of religious rights. Professor Jonathan Turley has posted a note about a new case on the subject that is worth checking out. The case involves a mother who has sued the Church of Scientology after her 20 year old son committed suicide. He was on antidrepressants, but his father allegedly took away the prescription drugs as part of his Scientology beliefs. The mother, who is not part of the church, says that her son was put into a church-oriented drug treatment program and that two other Scientology members helped lock away the medicine. The Church is moving to dismiss on the ground that the death did not occur on church grounds and the men were not formal officials with the church. For the story and more links go here.

Religious rights or torts liability?

Last month I posted a comment on whether there should be a cause of action for injuries to a child when parents refuse medical services for religious reasons (available here). Last week, FindLaw.com published two interesting related articles. In the first one, Cornell University Prof. Sherry Colb discusses a recent case in Wisconsin where prosecutors charged the parents of an 11 year old child with second-degree reckless homicide for failing to prevent her death. She died of untreated diabetes while her parents prayed for her recovery and chose not to consult a medical professional.

The facts of the case are very similar to those in Lundman v. McKwon, 530 NW2d 807 (MinnApp 1995) in which the court discussed whether to impose tort liability for the same conduct. Although Prof. Colb's article is not about torts liability, the issues discussed are essentially the same. She concludes that whether there should be liability is not as easy as it looks at first glance:

"Perhaps the most striking fact about the Neumanns, viewed in this way, is that they apparently did not mean for any harm to befall their daughter. They were not trying to discipline her, teach her a lesson, or deprive her of what she needed. They loved her and had, until this tragic episode, apparently taken good care of her. They thought that God would protect Kara, if only they prayed hard enough. By comparison to other, more aggressive zealots, their tragically misguided conduct might seem, in relative terms, far less malevolent." 

Prof. Colb's full article is available here.

In the second article, Benjamin N. Cardozo School of Law Prof. Marci A. Hamilton discusses the grand jury investigation by a Los Angeles US Attorney into allegations of a child sex abuse coverup by the Catholic Church's Los Angeles Archdiocese. In it, she discusses the claim that the investigation is unnecessary given that the Church has settled torts claims with the victims. In response to this argument, Prof. Hamilton states:

"The apparent reasons behind the settlement are very pertinent: First, early on, the church hierarchy succeeded in getting many claims consolidated . . ., so as to avoid individual litigation. Many survivors wanted their day in court and opposed consolidation, but this procedural move by the hierarchy meant that large collections of cases were treated as though they were single cases with judges overseeing many at one time. That way, the hierarchy could argue to reduce per-person claims, because the size of the total award would be large no matter what and the hierarchy could more effectively and efficiently control what information about the coverup would be released. Second, the Archdiocese settled essentially on the eve of trial, when it appeared that the Cardinal would have to testify regarding his obvious knowledge of a great deal of abuse. In other words, the settlement was a tactic to keep a further lid on damaging information. Thus, despite the settlement, relatively little information, especially given the amount that is still under the sole control of the Archdiocese, has reached the public." 

As you can probably guess from this excerpt, Prof. Hamilton supports the grand jury investigation. Her article is available here.

 Also recall the recent decision by the Sixth Circuit Court of Appeals recognizing a possible claim against The Vatican for similar conduct. See here.

Cause of action for injuries to child when parents refuse medical services for religious reasons?

Marci Hamilton has published an interesting column in FindLaw.com called "A Roundup of 2008's Developments Relating to Harms Suffered By Children in Religious Settings: Our Disturbing Current Status, and Some Signs of Progress." She concludes that events during 2008 show that children often suffer when their interests intersect with adults' religious beliefs.

The first group of cases she discusses are examples of cases where children died when their parents refused medical treatment because of their religious beliefs. She writes:

"During 2008, there were three widely-publicized deaths of children suffering from treatable medical ailments who had lived in faith-healing homes. In Wisconsin, Kara Neumann died from untreated diabetes at 11 years old; her parents were members of an Internet-based faith-healing organization, Unleavened Bread Ministries. In Oregon, fifteen-month-old Ava Worthington died of bacterial pneumonia and a blood infection; her uncle (or cousin depending on the report) Neil Beagley, 16, died of heart failure prompted by a urinary tract blockage. Ava and Neil's families were members of Followers of Christ, a notorious group responsible for the deaths of more children than just these two.

One medical neglect case appears to be headed in a more positive direction for the child: In late December, a New York judge ordered an Amish couple to permit their 15-month-old son, Eli Hershberger, to have the heart surgery he needed to survive." 

Evidently, the author simply assumes that obtaining medical treatment is the best option, even if it means forcing it upon the child against the parents wishes. I don't doubt a majority of people would agree with this position. But if you are interested in this topic you should take a look at an article by Teresa Stanton Collett called "Life and death lawyering: dignity in the absence of autonomy" published in the Journal of the Institute for the Study of Legal Ethics (1996). The author makes a good case for the position that the parents' wishes should be respected. I am not saying that I agree with it, but I am saying that the argument is not frivolous. I have covered this material in my Torts seminar by assigning Lundman v. McKown, 530 NW2d 807 (Minn App 1995) and having students prepare to argue an appeal based on the facts of the case. I've also had a professor who is a Christian Scientist judge sometimes, which has resulted in very interesting reactions by the students and very interesting discussions.

Sixth Circuit holds The Vatican can be sued for sexual abuse

In a landmark ruling yesterday, the Sixth Circuit concluded that the Vatican could be held liable for negligence in sexual-abuse cases filed in the U.S. It is the first time a circuit court reached that conclusion, and the opinion is considered a breakthrough by those allegedly abused by priests. The opinion is available here. Click here and here for reports from the Wall Street Journal. Originally posted by Sheila B. Scheuerman on TortsProf Blog.