208 University <strong>of</strong> California, Davis [Vol. 50:205 A. <strong>Parents</strong>’ Constitutional Right to Make Health Care Decisions for Their <strong>Child</strong> Absent Legally-Defined Abuse or Neglect .......................................................................... 315 B. Exclusion <strong>of</strong> Medical <strong>Child</strong> Abuse Diagnoses from Legal Proceedings for <strong>Child</strong> Abuse .............................................. 319 CONCLUSION....................................................................................... 320
2016] <strong>Bad</strong> <strong>Medicine</strong> 209 INTRODUCTION 1 In February 2013, fourteen-year old Justina Pelletier was admitted to Boston <strong>Child</strong>ren’s Hospital (BCH) for gastrointestinal issues. 2 At that time, Justina was being treated by a well-respected Tufts University medical team for mitochondrial disease, a genetic disease that affects energy production. 3 The Tufts team had recommended to her parents that she be admitted to BCH because her long-time gastroenterologist had recently transferred <strong>the</strong>re. 4 That gastroenterologist never got <strong>the</strong> chance to treat her, however. Without consulting <strong>the</strong> Tufts doctors, BCH doctors, led by a neurologist just months out <strong>of</strong> medical training, swiftly decided that Justina did not have mitochondrial disease, an illness with complex, sometimes disputed, diagnostic criteria. 5 Instead, BCH declared her issues psychiatric in nature, <strong>and</strong> prescribed in-patient psychiatric care. 6 When her parents disagreed <strong>and</strong> sought to transfer her care back to Tufts, <strong>the</strong> BCH child protection team diagnosed her with a new diagnosis, “medical child abuse” (MCA). 7 This diagnosis asserts that parents are abusing <strong>the</strong>ir children by subjecting <strong>the</strong>m to unnecessary medical care. 8 A pediatrician at BCH <strong>the</strong>n reported suspected child abuse to child protection <strong>of</strong>ficials, who deferred to <strong>the</strong> doctor’s assessment. 9 Over <strong>the</strong> objections <strong>of</strong> Justina’s mitochondrial disease specialist at Tufts, <strong>the</strong> juvenile court, too, deferred to BCH’s expertise in diagnosing MCA, <strong>and</strong> Justina’s parents lost custody. 10 After more 1 I criticized <strong>the</strong> rising phenomenon <strong>of</strong> medical child abuse charges in a 2015 New York Times op-ed, in part based on my experience as <strong>the</strong> parent <strong>of</strong> a child with complicated medical issues. See Maxine Eichner, The New <strong>Child</strong> Abuse Panic, N.Y. TIMES (July 11, 2015), http://www.nytimes.com/2015/07/12/opinion/sunday/<strong>the</strong>-newchild-abuse-panic.html?_r=0. The current article provides a detailed explanation <strong>of</strong> <strong>the</strong> legal shortcomings <strong>of</strong> such charges. 2 Neil Swidey & Patricia Wen, A Medical Collision with a <strong>Child</strong> in <strong>the</strong> Middle, BOS. GLOBE (Dec. 15, 2013), https://www.bostonglobe.com/metro/2013/12/15/justina/ vnwzbbNdiodSD7WDTh6xZI/story.html [hereinafter Medical Collision]; Neil Swidey & Patricia Wen, Frustration on All Fronts in Struggle over <strong>Child</strong>’s Future, BOS. GLOBE (Dec. 16, 2013), http://www.bostonglobe.com/metro/2013/12/16/month-medicalordeal-conclusion-still-uncertain/Y7qvYTGsq8QklkxUZvuUgP/story.html [hereinafter Frustration on All Fronts]. 3 See Swidey & Wen, Medical Collision, supra note 2. 4 See id. 5 See id. 6 See id. 7 See id. 8 See Swidey & Wen, Frustration on All Fronts, supra note 2. 9 See Swidey & Wen, Medical Collision, supra note 2. 10 See id.
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