Judge rules Minnesota family can't refuse chemo for boy

MINNEAPOLIS -- A Minnesota couple who refused chemotherapy for their 13-year-old son was ordered Friday to have the boy re-evaluated to see if he would still benefit from the cancer treatment -- or if it may already be too late.

Brown County District Judge John Rodenberg found Daniel Hauser has been "medically neglected" by his parents, Colleen and Anthony Hauser, who belong to a religious group that believes in using only natural healing methods practiced by some American Indians.

The judge allowed Daniel to stay with his parents, noting they love him and acted in good faith, but he gave them until Tuesday to get an updated chest X-ray and select an oncologist.

If the tumor has not grown and if Daniel's prognosis remains as optimistic as doctors testified last week, then chemotherapy and possible radiation appear to be in Daniel's best interest, Rodenberg wrote.

"The state has successfully shown by clear and convincing evidence that continued chemotherapy is medically necessary," he wrote, adding he would not order chemotherapy if doctors find the cancer has advanced to a point where it is "too late."

If chemotherapy is ordered and the family refuses, the judge said, Daniel will be placed in temporary custody.

It was unclear how the medicine would be administered if the boy fights it, which he said he would do, according to his court testimony unsealed Friday.

According to Daniel's court testimony, he believes the chemo will kill him, and said: "I'd fight it. I'd punch them and I'd kick them."

Calvin Johnson, an attorney for Daniel's parents, said the family is considering an appeal. For now, he said, Daniel is following the order and will have X-rays Monday.

Daniel was diagnosed with Hodgkin's lymphoma in January and underwent one round of treatment in February. He and his parents opted instead for "alternative medicines," citing religious beliefs.

Doctors have said Daniel's cancer had a 90 percent chance of being cured with chemotherapy and radiation. Without those treatments, doctors said his chances of survival are 5 percent.

Child protection workers accused Daniel's parents of medical neglect, and went to court seeking custody.

Court testimony indicated Daniel's tumor shrank after the first round of chemo, but has since grown. His mother, Colleen Hauser, testified last week: "My son is not in any medical danger at this point."

She has been treating his cancer with herbal supplements, vitamins, ionized water, and other natural alternatives -- despite testimony from five doctors who agreed Daniel needed chemotherapy.

Rodenberg wrote that state statutes require parents to provide necessary medical care for a child. The statutes say alternative and complementary health care methods aren't enough.

"If the Minnesota Legislature ever reconsiders the relevant statutes, I am confident that I join all of the others involved in this matter in hoping, and indeed in praying, that Daniel Hauser lives to testify at that hearing," Rodenberg said.

Rodenberg found Daniel has only a "rudimentary understanding at best of the risks and benefits of chemotherapy. ... he does not believe he is ill currently. The fact is that he is very ill currently."

Because of that, and other evidence in the case, Rodenberg said the state's interest in protecting the child override the constitutional right to freedom of religious expression and a parent's right to direct a child's upbringing.

Medical neglect, Rodenberg said, clearly took place both on April 29, when the Hausers did not seek the advice of one doctor who told them to return to an oncologist, and on May 7, when they disregarded with their family doctor's recommendation to get the tumor X-rayed. Up until then, Rodenberg wrote, the family was seeking second opinions and alternatives.

A court-appointed attorney for Daniel, Philip Elbert, called the judge's decision unfortunate.

"I feel it's a blow to families," he said Friday. "It marginalizes the decisions that parents face every day in regard to their children's medical care. It really affirms the role that big government is better at making our decisions for us."

The phone line at the Hauser home had a busy signal Friday.

Johnson, the parents' attorney, said everyone should be able to get medical care in line with their conscience.

"The Hausers believe that the injection of chemotherapy into Danny Hauser amounts to an assault upon his body, and torture when it occurs over a long period of time," Johnson said Friday. "They believe that it is against the spiritual law to invade the consciousness of another person without their permission."

The Hausers, who have eight children, are Roman Catholic and also believe in the "do no harm" philosophy of the Nemenhah Band. The Missouri-based religious group believes in natural healing methods advocated by some American Indians.

In his ruling, Rodenberg noted that at age 13, Daniel can't read. "He lacks the ability to give informed consent to medical procedures," Rodenberg said.

Bostrom said if an X-ray shows that there is still hope Daniel can be cured, it's possible doctors will recommend the same treatment plan.

Fear of chemotherapy is common among his patients, and Children's Hospital has a program that incorporates herbal supplements, massage, acupuncture, and other alternative methods to help patients deal with the side effects of the medication. It's unclear where Daniel will seek treatment.

"The bottom line is we just want to get through this, have him get better," Bostrom said. "And I'm happy the judge ruled that he could stay with his family because they are wonderful people ... We want what's best for Danny."

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On the Net:

Hauser case final argument briefs: http://www.courts.state.mn.us

Nemenhah Band: http://www.nemenhah.org