December 20, 2014

Medina
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Judge favors Amish family again in guardianship suit

MEDINA — A county probate judge again has upheld an Amish family’s right to stop chemotherapy for their 10-year-old daughter’s cancer.

This is the second time Judge John J. Lohn rejected a lawsuit filed by Akron Children’s Hospital seeking to gain “limited guardianship” over the girl.

The suit asked that a hospital attorney and nurse, Maria Schimer, be given the authority to make medical decisions for the girl, Sarah Hershberger.

John Lohn

Akron Children’s Hospital had appealed Lohn’s earlier ruling in favor of the parents to the 5th District Court of Appeals, which heard the case after 9th District Court judges recused themselves.

The girl’s parents, Andy and Anna Hershberger, of Homer Township, originally accepted chemotherapy for their daughter but later refused it in favor of herbs, vitamins and other “natural medicine” after seeing how the chemotherapy affected her, according to court documents.

Hospital physicians have said the girl will die in a year or less without chemotherapy. With treatment, they said she has an 85 percent chance of survival.

A spokeswoman said hospital officials were disappointed in Lohn’s ruling.

“We believe this case is about children’s rights and giving a 10-year-old girl an 85 percent chance of survival with treatment,” she said. “We stand by our doctors, who care deeply about their patients and fully embrace the principles of family-centered care, which includes making sure parents know and understand the risks and benefits of treatment.”

The Hershbergers’ attorney, John Oberholtzer, did not return calls for comment.

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

But the appeals court, in ordering a week ago that the case be reconsidered, stated Lohn “failed to even consider” that a person filing for limited guardianship simply needs to prove he or she is acting in the child’s best interest.

Lohn heard the case the second time as a visiting judge, after retiring earlier this year.

In his new ruling, Lohn stated that agreeing to the hospital’s request for a guardian would send parental rights down a slippery slope.

“It would allow grandparents to force a grandchild to attend private school or a hospital to circumcise a newborn baby or a school to put a child in vocational classes — all over the objection of the child’s parents,” Lohn wrote in his Tuesday ruling. “If a probate judge can be convinced such things would promote a child’s interests, the parents would be powerless to prevent them.”

In addition, he said granting guardianship to the hospital would be detrimental to the family.

“If the court establishes a guardianship, it would go against Sarah’s wishes, without her parents’ consent, and in derogation of the Hershbergers’ parental authority,” Lohn wrote in his ruling.

Lohn said the parents said they don’t trust the hospital because they believe officials misinformed them about the side effects of chemotherapy.

“Sarah says her doctors should be put in jail,” he wrote.

He said the girl’s would-be guardian would provide a “poor environment for therapy” because she’s never met the girl, been to her house or spoken with her parents.

If he granted guardianship, Lohn said the girl’s parents would be burdened by Schimer’s medical decisions because they would have to provide transportation, communication and nutrition to the girl as recommended by Schimer.

“If the parents fail to satisfy the guardian in any of the areas, the parents could ultimately be found in contempt of court and put in jail,” Lohn wrote. “If the parents are jailed, they cannot provide for Sarah and her young siblings.”

Lohn also said the media would cover the girl’s progress if he granted guardianship, which would “utterly destroy” the family’s “right to a quiet, dignified life.”

Lohn also said chemotherapy was not guaranteed to cure the girl, and even if it did, she could face permanent side-effects.

“Chemotherapy will cause Sarah pain, abject suffering and incapacitation,” Lohn wrote. “Even if the treatments are successful, there is a good chance Sarah will become infertile and have other serious health risks for the rest of her life.”

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