Parker Jensen's parents can sue
A federal judge on Friday gave the green light to a lawsuit filed by a Utah couple who were threatened in 2003 with losing custody of their son after they refused to force him to undergo chemotherapy.
In his decision, U.S. District Judge Paul Cassell stressed that his ruling centers only on whether there are legal grounds that allow the claims in the suit by the parents of Parker Jensen to go to trial, not on who is right or wrong in the dispute. The decision was prompted by the defendants' motions to throw out the lawsuit.
The ruling was not a total victory for Barbara and Daren Jensen, who say their constitutional right to decide what was best for their son was violated. Cassell threw out all claims against the state of Utah and two physicians, as well as a few of the claims against the remaining defendants.
Still remaining are allegations against Richard Anderson, director of the state's Division of Child and Family Services, in his personal, but not official, capacity; Susan Eisenman, an assistant Utah attorney general, as to the limited actions allegedly performed outside her prosecutorial capacity; and Kari Cunningham, a DCFS social worker.
Lars Wagner, an Intermountain Healthcare physician, and Karen Albritton, a University of Utah physician, also remain as defendants because they are accused of instigating or encouraging a juvenile court case concerning custody of Parker. Two IHC doctors, David Corwin and Cheryl Coffin, were dropped because they are not alleged to have initiated or perpetuated the case.
Daren Jensen said the family is very happy with the ruling.
"We're really anxious to get our story heard by a jury of our peers," he said. "Parker continues to be the picture of health."
The Sandy family's attorney, Karra Porter, said she is thrilled with the decision, which left intact the majority of their claims, including due process violations and malicious prosecution.
"This is a great ruling for us," she said.
Porter said Parker, now 15 and a ninth-grader, is a healthy, active boy.
Ray Hintze, chief deputy at the Utah Attorney General's Office, called the ruling a partial victory for his side.
"We're always pleased to get cases narrowed down by pretrial motions," Hintze said. "Obviously, we're going to continue to vigorously defend the individual defendants."
The high-profile case, which drew national attention, began when a small tumor removed from under Parker's tongue was diagnosed as Ewing's sarcoma, a rare form of cancer found mainly in children.
The Jensens said they initially were ready for chemotherapy but doctors refused to run a genetic test to confirm that their son had Ewing's sarcoma. The parents said they were concerned about subjecting Parker to dangerous chemotherapy without being certain of his condition and the stage and grade of the cancer.
Hospital officials made a medical neglect claim to DCFS and in August 2003, 3rd District Judge Robert Yeates ordered the state to take custody of Parker. After briefly disappearing with Parker, the JenÂsens agreed to follow the advice of a doctor of their choosing and regained custody.
On Sept. 25, the Jensens announced that test showed no new evidence of cancer. The next day, their Idaho doctor recommended 11 months of chemotherapy, saying the tumor tested positive for Ewing's sarcoma - a result now disputed by the parents. The couple again demanded the right to direct Parker's care.
Days later, state officials abandoned the fight to force the boy into chemotherapy. Yeates eventually dismissed the case, citing Parker's resistance to chemotherapy and criticizing his parents.
The Jensens pleaded guilty to a misdemeanor custodial interference charge for disappearing with their son and in exchange, felony kidnapping charges were dropped. That conviction was held in abeyance, meaning their records were wiped clean after a year.
In their lawsuit, the parents say their fight against accusations of medical neglect was financially and emotionally devastating. Their suit, filed last July in Utah's 3rd District Court and then moved to U.S. District Court, seeks an unspecified amount in damages. No trial date has been set.