Jensen v. Cunningham

• Decision Date: 29 March 2011
• Docket Number: No. 20090277.,20090277.
• Parties: Parker JENSEN, a minor, by and through his parents and natural guardians, Barbara and Daren JENSEN; Barbara Jensen, individually, and Daren Jensen, individually, Plaintiffs and Appellants,v.Kari CUNNINGHAM; Richard Anderson; Lars M. Wagner; Karen H. Albritton; Susan Eisenman; and Jane and John Doe, Defendants and Appellees.
• Court: Utah Supreme Court

250 P.3d 465

679 Utah Adv. Rep. 18

2011 UT 17

Parker JENSEN, a minor, by and through his parents and natural guardians, Barbara and Daren JENSEN; Barbara Jensen, individually, and Daren Jensen, individually, Plaintiffs and Appellants,

v.Kari CUNNINGHAM; Richard Anderson; Lars M. Wagner; Karen H. Albritton; Susan Eisenman; and Jane and John Doe, Defendants and Appellees.

No. 20090277.

Supreme Court of Utah.

March 29, 2011.

Roger P. Christensen, Karra J. Porter, Sarah E. Spencer, Salt Lake City, for plaintiffs.Mark L. Shurtleff, Att'y Gen., Bridget K. Ramano, Joni J. Jones, Asst. Att'ys Gen., David G. Williams, Andrew M. Morse, R. Scott Young, Salt Lake City, for defendants.Justice PARRISH, opinion of the Court:

INTRODUCTION

¶ 1 This appeal is the latest stage in a protracted dispute between the State of Utah and Barbara and Daren Jensen regarding the proper medical care of the Jensens' son, Parker. In it, we must balance the right of parents to direct the medical care of their child with the State's interest in protecting the health and safety of children within its borders.

¶ 2 A doctor who was treating Parker reported the Jensens to the Utah Division of Child and Family Services for suspected medical neglect after the doctor concluded the Jensens were refusing Parker lifesaving medical care. After a months-long process in the juvenile court, the Jensens sued the state of Utah and various state actors in Utah State court, alleging violations of the Jensens' state and federal constitutional rights. The defendants removed the matter to the federal district court, which entered summary judgment against the Jensens on their claims asserting that the defendants violated their federal constitutional rights. However, the federal district court remanded the Jensens' state law claims to the Utah district court, noting that the claims presented “important issues of state law.”

¶ 3 On remand, the state district court applied collateral estoppel and dismissed the plaintiffs' state claims. The court applied collateral estoppel because it concluded that the Utah Constitution provided no broader rights than the federal constitution and it determined that the facts, the alleged harm, and the analysis of the Jensens' state law claims were the same as those that the federal district court had already considered and dismissed.

¶ 4 We hold that the state district court erred in applying collateral estoppel, but affirm the district court's order on alternative grounds that are apparent in the record. Specifically, we hold that two defendants are absolutely immune from suit and that the claims against the remaining three defendants fail because, as a matter of law, the facts do not demonstrate a “flagrant violation” of the Jensens' state constitutional rights.

FACTUAL AND PROCEDURAL BACKGROUND ¹

¶ 5 This controversy began on April 30, 2003, when Barbara Jensen took her 12–year–old son Parker to an oral surgeon, Dr. Christensen, to have a small growth under Parker's tongue removed. Dr. Christensen sent a sample of the removed tissue to Laboratory Corporation of America (“LabCorp”) for analysis. The lab determined that the growth was malignant (cancerous). Dr. Christensen then referred the Jensens to Dr. Muntz, an ear, nose, and throat specialist at Primary Children's Medical Center (“Primary Children's”) in Salt Lake City, Utah.

¶ 6 After examining Parker, Dr. Muntz referred him to the oncology department at Primary Children's, where he met with Dr. Wagner. On May 9, Dr. Wagner examined Parker, but did not immediately offer any diagnosis because Primary Children's pathology department had not yet completed its own testing.

¶ 7 After completing testing on May 20, the Primary Children's pathology department diagnosed the growth as “Ewings Sarcoma/Peripheral Primitive Neuroectodermal Tumor,” otherwise known as Ewing's Sarcoma. The diagnosis from Primary Children's was based on the conventional test for Ewing's—an immunohistochemical staining—and the appearance of tumor cells. Ewing's may also be diagnosed through cytogenetic and molecular genetic testing. Under either test, a positive result may be manifested by a chromosomal translocation, but the absence of a translocation does not mean it is not Ewing's. Neither genetic nor molecular testing was performed on Parker's tissue sample,² although the pathology report contains a “comment” that reads, “In the event of excision of additional lesional tissue from this site, cytogenetic studies and freezing of tissue for possible molecular ancillary studies may be informative.” Nonetheless, the two pathologists who reviewed the testing were confident in the diagnosis. One, Dr. Lowichik, estimated her confidence in the diagnosis to be “in the high 90 percent.” The other, Dr. Coffin, testified that the Ewing's diagnosis was rendered with near certainty.

¶ 8 After reviewing the pathology report, Dr. Wagner spoke at length with Dr. Coffin, who was the head of the pathology department at Primary Children's, and asked her whether molecular testing was indicated for Parker. Dr. Coffin said she was comfortable with the testing that had been conducted.

¶ 9 On May 21, Dr. Wagner met with the Jensens to discuss Parker's care. Dr. Wagner expressed his confidence in the Ewing's diagnosis and his desire for prompt initiation of chemotherapy. Dr. Wagner told the Jensens that, if left untreated, Ewing's sarcoma was expected to be fatal. He explained the difference between localized and nonlocalized Ewing's, and informed the Jensens that the cure rate for localized disease—where there is no evidence of cancer in places other than where it was discovered—was approximately 60 percent to 70 percent when treated with recommended chemotherapy, but that the cure rate for nonlocalized disease was as low as 20 percent. He also explained that, if treated with surgery alone, Parker had a low chance of survival.

¶ 10 Dr. Wagner ordered radiographic examinations on Parker's neck, thorax, chest, and skull to determine whether the cancer had spread. All of these additional tests were negative. Dr. Wagner communicated to the Jensens his concern that there might be undetectable microscopic metastatic cancer cells throughout Parker's body that needed to be treated with chemotherapy. The Jensens were bothered by the idea that Parker could have what they termed “invisible cancer.” In fact, Ms. Jensen testified that she thought the notion was “crazy.”

¶ 11 When the Jensens asked whether there were any other tests that could be done to confirm the Ewing's diagnosis, Dr. Wagner told them there were no other tests required to confirm the diagnosis and that he was sure it was Ewing's. The Jensens nonetheless asked Dr. Wagner to send a sample of Parker's tissue to Dr. Grier, an oncologist at the Dana–Farber Cancer Institute at Harvard University (“Dana–Farber”), for a second opinion. Dr. Wagner complied with the Jensens' request and sent the tissue to Dana–Farber. The Jensens ultimately canceled the consultation. Dr. Wagner has testified that the Dana–Farber test was not done because the Jensens had determined their insurance company would not pay for the second opinion and the Jensens were unwilling to pay for it. The Jensens contend, however, that the second opinion was canceled because they felt it would not be truly independent.

¶ 12 On May 28, 2003, the Jensens consulted with Dr. Judith Moore, a family doctor at the Modern Health Clinic (the “Clinic”) in Bountiful, Utah. Ms. Jensen's father had received treatment from Dr. Moore for prostate cancer. Dr. Moore questioned the Ewing's diagnosis because “all the evidence except for the [Primary Children's pathology testing] were negative for cancer.”

¶ 13 Dr. Moore's treatment of Ms. Jensen's father had included a form of therapy called Insulin Potentiation Therapy (IPT). The Jensens asked professionals at the Clinic whether IPT might be a potential treatment if Parker had Ewing's, and they requested information to take to their oncologist. The Jensens were provided some printed materials and directed to websites that contained additional information on IPT, even though an employee of the Clinic who had previously administered IPT later testified that she believed IPT “was not a safe and effective treatment” for Ewing's.

¶ 14 The Jensens met again with Dr. Wagner on May 29, 2003. A social worker was also present. At the meeting, the Jensens asked Dr. Wagner for a Positron Emission Tomography (“PET”) scan, a procedure that Dr. Moore had recommended “to make sure there was no cancer throughout the body.” Dr. Wagner did not order the PET scan, explaining that it would not be useful in Parker's situation. Dr. Wagner explained to the Jensens that a negative PET scan would not change the need for chemotherapy because it could not detect microscopic cancer cells, and he again expressed the need for immediate chemotherapy.

¶ 15 The Jensens refused to allow Dr. Wagner to begin treating Parker with chemotherapy. The Jensens again asked Dr. Wagner if there were other tests to confirm the Ewing's diagnosis. Dr. Wagner said there were not. Dr. Wagner's entry in his medical log, which was made after the meeting, indicated that the Jensens were in agreement with the Ewing's Sarcoma diagnosis. He also noted that the Jensens were “quite interested in pursuing care at an alternative medicine clinic in Bountiful, Utah, which would provide insulin potentiation therapy (IPT).” Dr. Wagner had informed the Jensens that IPT is not an accepted therapy and could not be given through Primary Children's. Nonetheless, they asked him to “look into” IPT, and Dr. Wagner said that he would.

¶ 16 On June 5, Dr. Wagner discussed with Mr. Jensen the results of his research on IPT. Dr. Wagner communicated the following to Mr. Jensen: IPT is not approved by federal regulatory agencies for the treatment of any types of cancer; there is no evidence that IPT is an effective treatment for Ewing's; no...