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SALT LAKE CITY (AP) -- A judge on Friday dismissed the state of Utah as a defendant in a lawsuit filed by the family of a boy who the state tried to treat with chemotherapy against the wishes of him and his parents, but let much of the case proceed.
State employees named in the lawsuit can still be sued in their individual, not official, capacities by Daren and Barbara Jensen. The Jensens contend that the state and doctors conspired to force their son, Parker, to undergo chemotherapy in 2003 after a cancerous pea-sized tumor was removed from under his tongue.
The Jensens were charged with kidnapping after fleeing with their son, who was 12 at the time, to Idaho to avoid the state's order for chemotherapy, which they feared would stunt his growth and possibly make him sterile.
The charges eventually were dropped and the Jensens have said Parker, who did not end up going through chemotherapy, has shown no additional signs of cancer.
In a 47-page ruling issued Friday, U.S. District Judge Paul Cassell granted a motion to dismiss the state as a defendant, citing governmental immunity. But the motion to dismiss the case against two Division of Child and Family Services employees and a state prosecutor.
Cassell also dismissed a malicious prosecution claim filed in Parker's name because there was no evidence he was prosecuted.
Cassell noted several times in the ruling that it was based on the Jensens' case having enough merit to proceed, but it was not an indication that they would prevail in a trial.
"We're just really excited that we're going to have an opportunity," Jensen attorney Karra Porter said Friday.
(Copyright 2006 by The Associated Press. All Rights Reserved.)
