April 16, 2014

Partly cloudy

Hospital wins appeal in Amish girl guardianship case

Akron’s Children Hospital is getting a second chance to gain partial guardianship of a 10-year-old Amish girl with cancer whose parents stopped chemotherapy.

The 5th District Court of Appeals on Tuesday overturned Medina County Juvenile and Probate Judge John J. Lohn’s ruling from July in favor of the girl’s parents. The 5th District heard the case because the 9th District judges recused themselves.

Lohn has since retired. His successor, Judge Kevin W. Dunn, will hear the case.

Limited guardianship would grant hospital attorney and registered nurse Maria Schimer the authority to make medical decisions for the girl, Sarah Hershberger, instead of her parents, Andy and Anna Hershberger, of Homer Township.

Lohn had ruled the hospital failed to show the girl’s parents were irresponsible.

“The court cannot deprive these parents of their right to make medical decisions for their daughter because there is not a scintilla of evidence showing the parents are unfit,” Lohn wrote. “There was no basis in law and no basis in fact to file this action.”

In rejecting the ruling, the appellate court stated that Lohn “failed to even consider” that a person filing for limited guardianship simply needs to prove they’re acting in the child’s best interest.

“There is no requirement the trial court find the parents to be unfit or unsuitable before appointing a guardian on this ground,” the appeals judges wrote.

The judges also said they were glad the court and attorneys worked quickly on the appeal. Most appeals take more than six months to resolve, but this one took less than a month.

The case began when Sarah was taken to the hospital with tumors on a kidney and visible ones on her neck and chest, according to court records.

The parents at first accepted chemotherapy, but later chose natural medicine, including herbs and vitamins.

Physicians have said Sarah will die in a year or less if she does not get treatment.

“Our goal is to ensure that this child, like all children in our care, receives the most appropriate care, based on scientific evidence,” a hospital spokeswoman said Wednesday. “Chemotherapy presents children with lymphoblastic lymphoma with their best — and essentially only — hope for survival.”

The spokeswoman stressed the hospital is not claiming the Hershbergers are unfit parents, noting the hospital isn’t seeking physical or legal custody of the girl.

“This involves a disagreement between providers and parents over what course of treatment is best for their child,” the spokeswoman said.

John Oberholtzer, the attorney for the Hershbergers, said his clients disagree with the hospital that their daughter will die without chemotherapy.

“They look at this as a religious thing,” Oberholtzer said, “and they believe this kind of thing is in the hands of God.”

In Amish culture, anything harmful to the body is shunned. He said his clients weren’t properly warned how chemotherapy would affect their daughter, so he said the negative side-effects took them by surprise.

They’d rather leave the matter to God, he said, than put their daughter through more of the “brutal treatment.”

He said the idea that a hospital could take rights away from parents is disturbing to him.

“That goes way beyond the Amish community,” he said. “Everyone’s got to look at that long and hard.”

Contact reporter Nick Glunt at (330) 721-4048 or nglunt@medina-gazette.com.

  • freedom of choice

    I think that the parents and the child should make their own decisions for treatment. This is just crazy, let a hospital tell the parents and child that they know what is best. The hospital is not God.

  • More Factors

    I agree, and it seems quite silly that you can force someone to use your services, thus making more money for the hospital. I doubt every family with a child with extreme health situations takes the absolute advice of their doctors, there are more factors in every health decision. Religion, money, how much the child can handle,etc. Let them make the decision!

  • Eng Ricardo A. Olivieri

    After many years of telling people that chemotherapy was the only alternative to treat cancer, the JOHN HOPKINS HOSPITAL is finally telling people that there are other alternatives. In the newspaper “El Nuevo Dia” (Puerto Rico) there was an article about chemotherapy, the great medical mistake”. Chemotherapy kills the cancer cells as well as the healthy cells, organs, and tissues. My wife never received chemotherapy and has been cancer free for the last 13 years after the doctors gave her 2 months to live. Anybody could improve health with proper nutrition and faith in God.

  • Brian Harrington

    Go Akron Children’s! Adults have the right to choose their own medical care, but as far as stewardship of our children are concerned, it isn’t right to choose for them to skip known scientifically proven treatment. There is case law on this, parents who refuse medical treatment for their children have been found guilty of manslaughter and murder. Here’s some links: http://www.christianitytoday.com/gleanings/2013/july/faith-healing-parents-denied-free-exercise-of-religion-in-d.htmlnhttp://www.nbcphiladelphia.com/news/local/Faith-Healing-Parents-Schaibles-Child-Death-203782041.htmlnnIt's just plain wrong to say that a child should be denied the best medical care because the parents refuse it. The child can’t make that choice. The medical community knows what it is talking about, this stuff is science. It’s tested and re-tested and rejected when better evidence becomes available. Using herbs to treat cancer is pure and utter nonsense. The fact the parents are fit is irrelevant to the discussion at hand, the hospital need only prove that the course of treatment the parents are seeking will bring undue harm to the child.nnI fully support the hospital seeking to be guardian ad litem for this child. Far too many children die as the result of ignorant parents seeking treatment through supplemental, complimentary and alternative medicine. All of which is utter nonsense. I dare anyone reading this to challenge me on that. I triple dog dare you. nnI hope the hospital wins and this little girl can grow up to live a healthy, normal, active, and productive life. If they don’t I hope that the parents are ready for the biggest tragedy in their life, because she will die. It’s not a matter of if she dies when the parents are allowed to refuse treatment, it’s when.

  • BC_Programming

    >The hospital is not God.nnnThe hospital actually works.