PJ ex rel. Jensen v. Wagner

• Decision Date: 05 May 2010
• Docket Number: 08-4206.,No. 08-4197,08-4197
• Citation: 603 F.3d 1182
• Parties: PJ, a minor, by and through his parents and natural guardians Barbara and Daren JENSEN; Daren Jensen, individually; Barbara Jensen, individually, Plaintiffs-Appellants/Cross-Appellees, v. Lars M. WAGNER, in his individual capacity; Karen H. Albritton, in her individual capacity, Defendants-Appellees/Cross-Appellants, and Kari Cunningham, in her individual capacity; Richard Anderson, in his individual and official capacities; Susan Eisenman, in her individual capacity, Defendants-Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

603 F.3d 1182

PJ, a minor, by and through his parents and natural guardians Barbara and Daren JENSEN; Daren Jensen, individually; Barbara Jensen, individually, Plaintiffs-Appellants/Cross-Appellees, v. Lars M. WAGNER, in his individual capacity; Karen H. Albritton, in her individual capacity, Defendants-Appellees/Cross-Appellants, and Kari Cunningham, in her individual capacity; Richard Anderson, in his individual and official capacities; Susan Eisenman, in her individual capacity, Defendants-Appellees.

Nos. 08-4197, 08-4206.

United States Court of Appeals, Tenth Circuit.

May 5, 2010.

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Karra J. Porter (Roger P. Christensen and Sarah E. Spencer, with her on the briefs), Christensen & Jensen, P.C., Salt Lake City, UT, appearing for Appellants/Cross-Appellees.

Andrew M. Morse (David G. Williams and R. Scott Young, with him on the briefs), Snow, Christensen & Martineau, Salt Lake City, UT, appearing for Appellees/Cross-Appellants Wagner and Albritton.

Bridget K. Romano, Assistant Attorney General (Mark L. Shurtleff, Utah Attorney General, with her on the brief), Office of the Attorney General for the State of Utah, Salt Lake City, UT, appearing for Appellees Cunningham, Anderson, and Eisenman.

Before TACHA, ALARCÓN,^* and TYMKOVICH, Circuit Judges.

TACHA, Circuit Judge.

There is perhaps no more delicate constitutional barrier protecting individual freedom from governmental interference than that which protects against state interference with parental autonomy. The Supreme Court has long recognized that "the child is not the mere creature of the state," Pierce v. Society of Sisters, 268 U.S. 510, 535, 45 S.Ct. 571, 69 L.Ed. 1070 (1925), and that "the custody, care and nurture of the child reside first in the parents, whose primary function and freedom include preparation for obligations the state can neither supply nor hinder." Prince v. Massachusetts, 321 U.S. 158, 166, 64 S.Ct. 438, 88 L.Ed. 645 (1944). It is also well-settled, however, that "a democratic society rests for its continuance upon the healthy, well-rounded growth of young people into full maturity," and that states "may secure this against impeding restraints and dangers within a broad range of selection." Id. at 168, 64 S.Ct. 438. Because of the importance of parental rights and the concomitant interest of the state in the health and safety of minor children within its borders, the intersection of individual freedom and state authority is always difficult to traverse when a child's life is at stake. This case arises at this difficult constitutional intersection and involves both parents and state actors who genuinely sought to do what they believed was best for a child who was tragically stricken with a life-threatening illness. We have jurisdiction under 28 U.S.C. § 1291, and for the reasons discussed below we REVERSE in part and AFFIRM in part the decision of the district court.

I. BACKGROUND

This 42 U.S.C. § 1983 case was initiated by P.J., a minor child, and his parents Daren and Barbara Jensen.¹ The defendants are five state actors who were involved in the legal dispute in a Utah juvenile court over P.J.'s custody and medical care. Those state actors include: (1) Susan Eisenman, the Assistant Utah Attorney General who prosecuted the juvenile case on behalf of the state; (2) Dr. Karen Albritton, the state's expert medical witness throughout the juvenile court proceedings; (3) Dr. Lars Wagner, the doctor at Primary Children's Medical Center ("PCMC") who initially diagnosed P.J.'s illness and who referred P.J.'s case to the state; (4) Kari Cunningham, the Utah Division of Child and Family Services ("DCFS") social worker who initiated the custody petition on behalf of the state; and (5) Richard Anderson, the DCFS director who, late in the proceedings, attempted to negotiate a resolution to P.J.'s case.²

On April 30, 2003, an oral surgeon removed a small growth from the floor of P.J.'s mouth. After laboratory testing revealed that the growth was malignant, the surgeon referred the Jensens to PCMC where they ultimately met with Dr. Wagner in the hospital's oncology department. On May 20, 2003, Dr. Amy Lowichik completed a pathology report on the growth removed from P.J.'s mouth. Dr. Cheryl Coffin, another pathologist, concurred in the report. The report diagnosed the growth as Ewing's sarcoma, a rare form of cancer, based on a testing procedure known as immunohistochemical staining and on the morphology of the tumor cells. Dr. Wagner discussed the pathology report with Dr. Coffin, who expressed confidence in the diagnosis and explained that no further testing was necessary to confirm it, even though other tests such as cytogenetic or molecular testing were available.

On May 21, 2003, Dr. Wagner met with the Jensens to explain P.J.'s diagnosis. During this consultation, Dr. Wagner explained that P.J.'s disease was life threatening and expressed his belief that immediate chemotherapy treatment was necessary to save P.J.'s life. When the Jensens asked if any further tests could be performed to confirm the diagnosis, Dr. Wagner said no. The Jensens requested that Dr. Wagner send P.J.'s tissue sample to the Dana-Farber Cancer Institute at Harvard University for a second opinion. Dr. Wagner complied with this request; however, the Jensens ultimately canceled the Dana-Farber review.

On May 29, 2003, the Jensens returned to PCMC to meet with Dr. Wagner. During this meeting, the Jensens requested that Dr. Wagner perform a Positron Emission Tomography ("PET") scan to confirm the Ewing's diagnosis. Dr. Wagner refused to order the PET scan, explained that such a test would not be useful, and stated that even a negative scan would not change his opinion that P.J. need immediate chemotherapy. The Jensens asked Dr. Wagner again if further testing could be performed to confirm P.J.'s diagnosis, and Dr. Wagner again said no. Additionally, the Jensens asked Dr. Wagner to consider an alternative treatment to chemotherapy called Insulin Potentiation Therapy ("IPT"). Dr. Wagner stated that he was unfamiliar with IPT but that he would examine it as an alternative treatment method. After consulting with other doctors and performing independent research on IPT, Dr. Wagner concluded that there was insufficient data available about the treatment's safety and effectiveness, and it therefore was not a viable treatment option for P.J.

On June 5, 2003, Dr. Wagner reported his conclusions about IPT to the Jensens and reiterated his belief that immediate chemotherapy treatment was necessary to save P.J.'s life. During this communication, Dr. Wagner also informed the Jensens of his legal and ethical duty to report P.J.'s case to DCFS if P.J.'s best medical interests were not being addressed. Because it appeared that Dr. Wagner and the Jensens had reached an impasse regarding the best course of treatment for P.J., a meeting among Dr. Wagner, the Jensens, and other PCMC staff was scheduled for June 9, 2003 at PCMC. During the June 9 meeting, Dr. Wagner again expressed his belief that immediate chemotherapy was necessary to save P.J.'s life, and the head of PCMC's quality assurance department informed the Jensens that it may be necessary to refer P.J.'s case to DCFS. Nevertheless, the Jensens refused to consent to chemotherapy and told the PCMC representatives that they were fired.

On June 16, 2003, Dr. Wagner formally referred P.J.'s case to DCFS. Ms. Cunningham was assigned to the case. Ms. Cunningham believed, based on the information provided to her by Dr. Wagner and another PCMC doctor, that P.J.'s situation presented a medical emergency that had to be addressed immediately. Accordingly, she did not contact the Jensens or perform any investigation; rather, she filed a Verified Petition and Motion to Transfer Custody and Guardianship ("verified petition") in the Utah juvenile court based entirely on the information she received from the doctors. The juvenile court set the first hearing on the verified petition for June 20, 2003.

Upon receiving notice of the verified petition, the Jensens obtained an attorney and had more tissue removed from P.J.'s mouth for independent testing. That tissue was sent to a pathologist at the University of Washington, who ultimately diagnosed it as Ewing's sarcoma. Additionally, the Jensens contacted Dr. John Thomson, a radiation oncologist at LDS Hospital in Salt Lake City, Utah, who completed a written report on June 19, 2003, confirming the original diagnosis. The report stated, "It is my opinion that P.J. has a Stage 1 or Group 1 nonosseous Ewing sarcoma with a favorable prognosis when treated to the standard of care with poly chemotherapy ... and I doubt that further pathologic evaluation would alter recommended therapy...."

On June 20, 2003, the Jensens made their first appearance in the juvenile court. At the initial hearing, the Jensens explained to the court that they were seeking further tests. In addition, the Jensens and the state indicated that it might be possible to reach a stipulation regarding P.J.'s treatment. Accordingly, the juvenile court continued the hearing until July 10, 2003.

Around the time of the initial hearing, the Jensens contacted Dr. Jeorg Birkmayer, who practiced in Vienna, Austria. Dr. Birkmayer indicated that he was not "totally convinced" that P.J. had Ewing's sarcoma and suggested that he was not sure that chemotherapy was necessary. When Ms. Eisenman learned of the Jensens' contact with Dr. Birkmayer and their desire to have him supervise P.J.'s treatment, she sent Dr. Birkmayer an e-mail in which she inquired about his qualifications and whether Austria had a similar standard of care to that in the United States. According to the Jensens, they ultimately abandoned their plan to retain Dr. Birkmayer because DCFS insisted that P.J.'s medical care be provided by a board-certified pediatric oncologist, which Dr....