Court sides with hospital

Akron Children's Hospital wants to force an Amish girl to resume chemotherapy after her parents decided to stop treatments.
Associated Press
Aug 29, 2013

An appeals court has sided with a hospital that wants to force a 10-year-old Amish girl to resume chemotherapy after her parents decided to stop the treatments.

The court ruled that a county judge must reconsider his decision that blocked Akron Children's Hospital's attempt to give an attorney who's also a registered nurse limited guardianship over Sarah Hershberger and the power to make medical decisions for her.

The hospital believes Sarah's leukemia is very treatable but says she will die without chemotherapy.

The judge in Medina County in northeast Ohio had ruled in July that Sarah's parents had the right to make medical decisions for her.

The appeals court ruling issued Tuesday said the judge failed to consider whether appointing a guardian would be in the girl's best interest. It also disagreed with the judge's decision that said he could only transfer guardianship if the parents were found unfit.

The family's attorney, John Oberholtzer, said Wednesday that the ruling essentially ordered the judge to disregard the rights of the parents.

Andy Hershberger, the girl's father, said the family agreed to begin two years of treatments for Sarah last spring but stopped a second round of chemotherapy in June because it was making her extremely sick.

"It put her down for two days. She was not like her normal self," he said. "We just thought we cannot do this to her."

Sarah begged her parents to stop the chemotherapy and they agreed after a great deal of prayer, Hershberger said. The family, members of an insular Amish community, shuns many facets of modern life and is deeply religious. They live on a farm and operate a produce stand near the village of Spencer in Medina County, about 35 miles southwest of Cleveland.

"Our belief is, to a certain extent, we can use modern medicine, but at some times we have to stop it and do something else," Hershberger said in a telephone interview.

They opted to consult with a wellness center and treat Sarah with natural medicines, such as herbs and vitamins, and see another doctor who is monitoring their daughter, Hershberger said.

"We see her every day. We watch her really close," her father said. "She runs, plays. She crawls up ladders. She's got a lot of energy, more than she had when she was doing chemo."

Hershberger said they have not ruled out returning to Akron Children's Hospital if Sarah's health worsens. "We told them if it gets to the point that we cannot do anything for her, we would come back," he said.

After the appeals court decision, the hospital said in a statement Wednesday that its goal is to ensure that the girl receives the most appropriate care based on scientific evidence and added that the allegation has never been about "parental unfitness."

It said neither the hospital nor anyone else is requesting legal or physical custody of the child; instead, the hospital said, this case "involves a disagreement between providers and parents over what course of treatment is best for their child."

Robert McGregor, the hospital's chief medical officer, said last week that it is morally and legally obligated to make sure the girl receives proper care.

He said the girl's illness — lymphoblastic lymphoma — is an aggressive form of non-Hodgkin lymphoma, but there is a five-year survival rate of 85 percent if she continues treatment.

Some of the girl's tumors had gone away after the first round of chemotherapy, but she isn't yet in remission, the hospital said.

"We really have to advocate for what we believe is in the best interest of the child," McGregor said last week.

Comments

Mum-of-One

I think it is up to the parents. Chemotherapy does a great deal of damage as well as good. Everyone should have the choice whether or not they want to pursue this course of treatment. I think that quality of life should be a consideration here and the family should be able to decide for themselves what they consider best for their daughter. The five year survival rate of 85% only lets us know that 85% survived the treatment. Beyond the five years is a challenge because of the damage chemo can do. Other ailments are caused during treatment and the survivor has to live with them. This of course does not mean that the survivor has a good quality of life after treatment.

deertracker

It's the parent's decision. Period!

The Big Dog's back

Agreed!

Nemesis

WOW!!!!!! Somebody check and see if they're playing hockey in hell!!!!!
Big dog actually failed to toe the statist party line.

Who are you and what have you done with Big Dog?

Informed

So it's okay for these parents to let a child die? Their reasoning that chemo was making her sick is not enough. Duh, of course chemo makes one sick. You deal with a few months if being sick so you can live. The sickness is temporary. That form is leukemia is very treatable and she most likely will live a long, healthy life. Without it she will most likely die.

SamAdams

I disagree based on the limited information that's been made public. I wouldn't find in favor of freedom of religion if parents wanted to sacrifice their child to some obscure god, and I suspect none of you would, either. And yet in many ways, this is little different.

An adult can decide to effectively commit suicide by refusing treatment, and that adult should be able to do so whether it's based on religion, quality of life during and after treatment, or any OTHER reason. A child, however, cannot make that decision rationally because a child doesn't have the life experience to do so.

Parents can and should make all sorts of decisions for their children. I won't even argue issues like vaccination. But assuming chemotherapy will save this child and herbs won't, they're pretty much choosing to sacrifice her life while they pray over her. Again, in other circumstances, I wouldn't condone — and would actively work to prevent — human sacrifice. How can I pretend this is that different?

Nemesis

Once again, Sam's emotions overrule her supposed libertarian reasoning and cause her to play the fascist. The state has no business deciding what's in a child's best interest. Being poor probably has the same statistical impact on a child's life expectancy as these parents' decision. Should the state seize all children whose parents aren't at least upper middle class?

Human sacrifice is an overt act to CAUSE death. This is a judgement about what is a prudent course of action, with no intent to cause death. THOUSANDS of parents make judgements every day that increase the probability of their children's death, with no such intention. They choose to allow their kids to swim in pools, lakes, and the ocean, to ride bicycles and off-road motorcycles, to climb trees and even mountains, to jump on trampolines, to play with big dogs, to eat trans-fats, to ride in cars, to cross the street, I could go on for hours. Kids are not wards of the state, and when they are, the results are disastrous. The mortality rate for children in state custody (including foster care) is five times that for children in parental custody.

If Amish parenting practices are so horrendously deadly, then St. Darwin will rid us of the Amish in a few generations.

Cases like this represent the camel's nose under the wall of the tent; they are the seed which sprouts into cases in the last few decades where parents have lost their children for taking them to a church that teaches that hell is real, and some jurisdictions telling Jewish and Muslim parents that they cannot circumcise their kids.

Medical science is not infallible, and in fact, its over-dependence on statistical correlations without regard for proven causality is deeply flawed.

Your comparison to human sacrifice suffers from a major fallacy - it equates the acceptance of an increment in risk, with taking volitional action known to have a guaranteed 100% mortality rate with the clear intent of mortality.

Informed

So, according to your reasoning, children who are abused by their parents shouldn't be removed? Ridiculous. Many children have been saved because of being placed in foster care, and there are many loving, nurturing foster homes.
Show me your proof that in Ohio, the mortality rate for children in state custody is five times that for children in parental custody.
This child will die if not treated, and will most likely live if treated. That is the bottom line.

Nemesis

Our Constitutional system holds the government responsible for protecting certain inalienable rights, and assault and murder are illegal in our society. Again, there is a difference between intentional criminal acts intended to violate the inalienable rights of others. Contrary to the opinion of America's socialists, chemotherapy is not an inalienable right, and that's the position of at least half the country that opposes Obamacare.

The child MAY die if not treated in the currently popular manner. Just last week, there was an article here about a man who revived 45 minutes after being declared dead by a modern hospital staff, with not medical intervention in that 45 minutes.

The study on mortality rates was done in five western states. There is no sound basis for the assertion that Ohio's performance can be expected to be any better.

Informed

And you cannot assume that the result in five western states would be the same as Ohio. Those are not random samples, and each state has their system of child protective services.

Nemesis

They are all similar, since they all have to comply with federal mandates to continue receiving a lot of their funding. The only thing government does better than the private sector is kill people. How about you provide a reason why Ohio should be so much better at it than other states?

Informed

Similar in some ways, vastly different in others. I did provide a reason--because what you stated is not representative of Ohio. It was not a random sample.
You obviously have never worked with abused children. So please tell me, what should be done for children who are abused or neglected by their parents if you don't think the government should intervene. And try reading the book, A Child Called It.
I'll repeat--children are not property for parents to do whatever they wish. There are lines, and in this case they were crossed. These parents are killing their child.

Nemesis

Again, what makes Ohio so unique? You can't go two months without seeing a newspaper story about a kid in Ohio dying in foster care.

Children are not free agents, therefore, they are either the property of their parents or the property of the state. The latter is not acceptable and historically shown to be more detrimental.

SamAdams

Okay, fair enough: The state should never, never, EVER interfere with child rearing.

If you choose to star your own children in pornographic movies or photos, well, you're their parent and you need to make a living, so...

If you choose to break your baby's bones because it won't stop crying, well, the child's your property, so...

If you leave your toddler home alone and it ingests poison or starts a fire, well, that's nobody's business but yours, so...

There. Is THAT Libertarian enough for you?

Nemesis

Parents have been arrested because they photographed their toddlers in the bath - what's the difference?

Intentionally inflicting broken bones is assault and battery, and violates an inalienable right. Are you now prepared, Sam, to stand with Obama and assert that healthcare is an inalienable right?

Obesity has now been declared a disease by the powers that be. Should we now establish a BMI value above which children will be seized by the state? According to people who have the ear of leaders like Bloomberg, obesity kills far more people than lymphoma.

The American Academy of Pediatrics wants pediatricians to track whether parents keep guns in the home, Given their other leftist policy positions, what could they possibly be planning in the future? Defining gun ownership by parents as child endangerment? What basis is there for oppposing them in the framework you've advocated - they're doctors, after all, just like the oncologists seeking to abrogate these Amish parents' rights.

A year doesn't go by without some already approved drug being pulled from the market because of new revelations that it's dangerous. A man revives 45 minutes after a crack ER staff declares him dead. People have been charged with a crime for administering a bizarre, but lifesaving treatment for C-diff that the wise mandarins at the FDA haven't yet approved. Louis Pasteur faced criminal charges for administering the first rabies vaccine in contradiction of the medical consensus of his time.

See Sam, your appeal to the authority of the medical community plays into the central motivation of the fascist - we're smarter than these people, so we should make their decisions for them.

Regarding leaving a toddler at home, I refer you to freerangekids.com - the question of what level of supervision children need is a hotly debated topic these days, with, in some cases, parents being charged with a crime for letting their children play in their own backyard while watching from the window.

SamAdams

Okay, we both went to extremes for examples. I never REALLY believed you thought child pornography was acceptable, and I don't think you ever REALLY believed I'm a fascist. In your own explanation above, however, you point out precisely the difference I was highlighting, and that's real and immediate harm to the child.

Vaccinate your kids? Debatable (though I favor vaccination myself). Helmets for riding a scooter down the sidewalk? Silly (but that is, sadly, already a law we might BOTH agree is fascist). But again, in THIS story, at least as much as we know right now, the question is pretty straightforward:

Let the parents decide = child almost certainly dies.
Let the doctors decide = child has a high probability of living.

Tell me what your position was on the parents who made national news when they sought NO medical care and instead prayed over their now dead baby, and were charged accordingly! And then explain how you justify your opinion.

The Big Dog's back

I believe you're a Fascist Eva.

Nemesis

That's a case of it takes one to know one. You're the biggest fascist of all, Dog, and you don't even know it because you don't understand what fascism really is.

Nemesis

As for you being a fascist, Sam, being fascist is like being pregnant - there's no such thing as a little bit. How do you think we got to the overbearing government we have today - people like you, who want MOSTLY to be free, but each having their pet cause for which they want to make an exception and cede responsibility to government - then they start making deals with each other - I'll support YOUR government program if you support MY government program, and now there are two new government programs. It's a slow death of liberty by tiny cuts, each one being used as incremental justification for the next. The evangelical supports taking kids away from a gay parent, and the radical atheist supports taking kids away from the parent who tells kids they're going to hell, and voila! the only thing they agree on is that sometimes, it's OK for the state to take away your kids, and before you know it, everybody is on the bandwagon.

The difference I pointed out isn't real and immediate harm, it's knowing intent to inflict certain, inevitable, material and irreparable harm. I assume you understand that mens rea is a central tenet of our justice system. Actions taken with a knowledge that the probability of harm is 1.0, and with the specific intent to do harm, are crimes in our society.

My position on the parents you mention is that their judgement resulted in a bad outcome. The only difference I see between that and a 17 year old living in the projects deciding to have unprotected sex, getting pregnant, and bearing a child she's unable to raise in a safe environment, which then gets killed by a stray bullet in a drive-by shooting, is that the parents you mention didn't ask me as a taxpayer to foot the bill for the whole sad episode.

Here's the thing - a society that doesn't allow parents to make nonconformist judgements that impact their children's lives for the worse also won't tolerate parents who make nonconformist judgements that impact their children's lives for the better. That's how you get countries that outlaw private and home schooling in the name of equality. What is the yardstick, especially in a world where parental wealth and marital status are the two strongest determinants of a child's prospects in life? Statistically, the single biggest strike against a child's prospects and life expectancy is no father in the home - are you prepared to seize all children from single mothers? From all parents under a certain age, income, or education level?

I know where you stand on socialized medicine. You and I probably agree in wanting fully free enterprise, market-based healthcare. What if the reason this kid wasn't getting chemo was that her parents couldn't afford it, and there was no welfare state? Why is parental/religious freedom any less important than economic freedom?

Either you are guided by principle, or you're guided by emotion that throws principle out the window whenever somebody says "It's for the CHILDREN!" In a free society, kids will die from a lot of things - helmetless cycling, lawn darts/swallowing small powerful magnets (e.g.the now outlawed Buckyballs)/cribs manufactured before June 28, 2011*,swimming pools, to name a few. However, a lot of kids who die now WON'T die - those killed in the foster care system, those killed in SWAT raids at the wrong house because an informant said someone had some pot, kids killed because effective treatment for their illness isn't approved, kids killed by the inner city violence that is a direct outgrowth of drug prohibition. Most importantly, parents will be able to make decisions based on their own risk tolerance, and have no one but themselves to blame/sue when their kids die, whereas the kids dying now to which I alluded were killed by forces about which their parents are powerless to do anything.

Look, I don't agree with these parents' decision - I think it's stupid, but if stupid people are to be allowed to breed, why can't the damage they do to the future gene pool be self-correcting?

*all of which it is a federal offense to sell, new or used, even in a garage sale, courtesy of the Consumer Product Safety commission.

SamAdams

You know, I had arguments for almost every point you made (including the idea that the ONLY legitimate function of government is to protect anyone from infringing the basic, unalienable rights of each of us). But then I finished reading what you wrote, and I now have no choice but to say: You win. You're right.

Wanna know which part of your argument decided me? "...if stupid people are to be allowed to breed, why can't the damage they do to the future gene pool be self-correcting?"

I'm sure you realize that sounds cold, but I know it's really not. It's also unequivocally correct (or it ought to be). So again: You win.

It's never-the-less been a genuine pleasure having a back-and-forth with somebody who not only has an opinion, but actually formed those opinions based on some facts and some intelligence. As a result, I appreciate you made me rethink a few things and, while I've not changed my mind on everything, I do have some new food for thought.

I suspect we agree on more things than we don't, but either way, I would be pleased to have a conversation with you anytime on any subject.

NOTE TO CERTAIN OTHER POSTERS: Nemesis didn't call me names or engage in any other personal attacks to make his/her point and make it really, REALLY well.

Nemesis

Sam, as someone who was dragged by unassailable reason, kicking and screaming, from being a neocon to a libertarian, it warms my heart to hear that. I've only been riding your back here because a great deal of your posting indicated you would eventually "get it."

For a fun read, check out Ken White's posting history at Popehat.com to see the process of someone being similarly dragged from the left region of the dark side.

It's a little disappointing that the high road was less persuasive than the callous Randian eugenic calculus. It's important to see how the loss of freedom in one area detracts from freedom in others, and the futility of turning responsibility over to government, even with the best of intentions (which, of course, are the cobblestones of the road to hell.)

Go read freerangekids.com - you'll see that we have already slid quite a distance down the slippery slope to which I've alluded in this thread.

When next a compelling cause tempts you to defend government paternalism, remember that government is like alcohol - when you think it can help you, that is when it can most hurt you. Think through all the ramifications, and how what your contemplating could come round full circle to bite you on the backside. When it comes to kids, broad parental freedom to take the road less traveled is the only thing preserving diversity of thought, because if everyone is parented according to some top-down procrustean template, the next generation will all think in lockstep. That's why tyranny, from the Hitler Youth to Huxley and Orwell's dystopias, always seeks to control child rearing. Remember that liberty is seldom tidy, sanitized, or without causes for grief; it's messy, scary, and no stranger to tragic failures, for the freedom to succeed goes hand in hand with the freedom to fail.

SamAdams

Don't be disappointed in the straw that broke my back on this one. Your other points were perfectly valid; I just had responses for them. I'll say again that the ONLY legitimate function of government is to protect against the infringement of unalienable rights by others. In this instance, I could make a case that the parents are threatening the child's right to life, never mind liberty and the pursuit of happiness!

I was never a neocon myself. I went straight from liberal to libertarian (note the lower case "L"). Took me 'til I was in my early 20's, I think to completely convert over. In my defense, I wasn't dragged kicking and screaming. It was more an "aha!" moment than anything else. I'm still working a few of the extended facets. :-)

I'll check out your suggested reading material. Meanwhile. do let me know if you're headed out for some political or historical rally/event. I'll show up just to make your day complete, LOL!

Nemesis

The last few steps are the hardest. We all have our idea of how people should live for a civilized society to continue, and the final step in letting go of the impulse to have government make them do so is the realization that, if your concept of how people should live is valid, then removing all the government apparatus designed to get between people and the consequences of their choices will make doing the right thing self reinforcing.

sash

If the treatment or outcome were in debate I would support the parents, but neither seems to be the case here. Children are not the property of parents to do with as they wish, especially when those actions endanger their children. Without treatment, she will be dead within a year, and with treatment she has an 85-90% survival rate. To deny her lifesaving treatment because she's sick for a couple days after treatment or because the treatment could leave her infertile is reckless and irresponsible. Fertility doesn't matter to a corpse. Society and government has limited parental discretion for a very long time when it comes to decisions which affect the safety of children. When the decision made will result in probable death versus possible harm, why would parental authority become sacrosanct? Watching the news or reading the paper shows that parents make stupid or dangerous decisions daily regarding their children, but being the parent doesn't make those decisions acceptable. The child's well being has to be the deciding factor, not parental autonomy.

Informed

Exactly. Children are not property.

Nemesis

"The child's well being has to be the deciding factor, not parental autonomy."

Who decides what constitutes the child's well being? Who chooses what is best, what is the ideal risk/benefit balance? You? Me? The creepy guy at the end of the bar - actually, he'd be a better candidate than most politicians or bureaucrats, whose track record is five times worse than parents. Maybe all kids should be raised by government, eh, Aldous?

Quis custodiet ipsos custodes?

Informed

Well obviously in this case the parents are not making a decision that is in this child's best interests. Someone has to step in to prevent a child from dying.

Nemesis

Not obviously. You have no crystal ball - what if she's in the 15% who DON'T survive despite treatment? What if she dies, despite treatment, on the very same day she would have died without it? Same quantity of life, vastly different quality of life. It's a judgement call.

"Someone has to step in to prevent a child from dying"

So, then, you're all for sending troops into Syria? Because, you know, it's established that a LOT of children are dying there. Or do you only care about children who are demographically similar to you?

Death is a fact of life. Attempts to use the power of government to erase that are doomed to futile tyranny.

sash

In an ideal world, parents can and should be the peope making these decisions. We do not, however, live in an ideal world. As I stated above, in the majority of cases I believe the parents should make the decisions, but I don't believe it is an absolute right. You talk of a risk/benefit balance, but this specific case comes down to a life/death balance. Without treatment she will be dead in a year. This is what all of the scientific and medical evidence shows. People can argue alternative treatment, but when a child's life is in the balance you must make decisions based on the overwheming scientific and medical evidence available. Not rumors, not infomercials, and not what your neighbor told you, but documented evidence. This isn't a balancing act decision where there are low or questionable odds versus quality of life. This is a fast acting killer with a highly successful treatment available, and rejecting those facts is reckless and irresponsible. Parents aren't infallible and when they make a decision which will kill their child, it's time to step in.

Nemesis

"You talk of a risk/benefit balance, but this specific case comes down to a life/death balance. Without treatment she will be dead in a year. This is what all of the scientific and medical evidence shows."

No - this is NOT what ALL of the scientific and medical evidence shows. You are laboring under a mathematically illiterate concept of risk, which is not a digital, one or zero phenomenon. With treatment, there is an 85% chance of survival, without, there is probably about a 3-5% chance. There are experimental, not yet approved for general use treatments that are less painful and may be even better.

"This isn't a balancing act decision where there are low or questionable odds versus quality of life."

But it IS. DOCTORS ARE NOT GODS - THEY ARE FALLIBLE, AND THE SINGLE MOST IMPORTANT HEALTHCARE RIGHT IN THE WORLD IS THE RIGHT TO QUESTION AND CHALLENGE THEIR JUDGEMENT.

"Parents aren't infallible and when they make a decision which will kill their child, it's time to step in."

Like letting the child participate in a dangerous sport? For over five years, I've been crusading against a major certifying agency's decision to train 8 year olds in SCUBA, but if you want to do it with your kid, I'll defend your right to do so.

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