Academic journal article
By Mitgang, Melissa
Columbia Journal of Law and Social Problems , Vol. 44, No. 4
During the past three decades, the incidence of childhood and adolescent obesity has more than doubled in the United States, coupled with increases in the severity of pediatric obesity and the prevalence of illnesses associated with obesity among the pediatric population. As a result, courts and legislatures have been increasingly faced with the question of whether and when state intervention in the case of pediatric obesity is appropriate under medical neglect statutes. After examining relevant judicial opinions and commentary from the legal and medical communities, this Note takes the position that intervention is only warranted when it is necessary to prevent short-term loss of life or to address a current risk of serious harm. In order to determine whether this standard is met, a case-by-case method is proposed, focusing on four factors: the severity of the child's illnesses associated with obesity; the degree to which medical treatment can mitigate the resulting adverse health effects; an assessment of the child's complete physical and mental health picture; and when the just answer remains unclear, the child's risk of remaining obese as an adult.
During the past three decades, the incidence of childhood and adolescent obesity has more than doubled in the United States.1 As of 2004, in the United States, 13.9% of children ages two to five were obese, 18.8% of children ages six to eleven were obese, and 17.4% of teenagers ages twelve to nineteen were obese; in all, 17.1% of children and adolescents ages two to nineteen were obese.2 Childhood and adolescent obesity "currently affects at least 10-25% of the [pediatric] population in most developed countries."3 The prevalence of childhood obesity has been described as an "explosion,"4 a "worldwide epidemic,"5 and "the most common disorder of childhood in the developed world."6
This increase in the prevalence of obesity has been accompanied by an increase in the severity of obesity. Medical literature defines overweight children as those with a Body Mass Index ("BMI") above the eighty-fifth percentile; obese children as those with BMI above the ninety-fifth percentile; and morbidly obese children as those with BMI above the ninety-ninth percentile.7 "The distribution of body-mass index . . . has shifted in a skewed fashion, such that the heaviest children, at greatest risk of complications, have become even heavier."8 In a study comparing students from 1973-1975 to students from 1989-1990, researchers found that "differences in BMI between the cohorts were minimal at the lower end of the BMI distributions, began at approximately the 40th percentile, and increased with increasing BMI, demonstrating that equivalent percentiles were indicative of a higher BMI in the 1989-1990 cohort than in the 1973-1975 cohort."9 This increase in childhood and adolescent obesity and its severity has been accompanied by an increase in the prevalence of comorbidities10 of obesity - some of which were seen previously only in adulthood11 - including type two diabetes, obstructive sleep apnea, asthma, nonalcoholic fatty liver disease, cardiovascular conditions such as hypertension and atherosclerosis, and psychological problems such as depression.12
Because of the increased prevalence and severity of pediatric obesity throughout the country, courts and legislatures have been increasingly faced with the question of whether and when state intervention is appropriate.13 As a small but growing number of courts answer that certain situations warrant state involvement,14 defining the limits of appropriate involvement has become a more pressing inquiry. When is the state justified in ordering treatment, which can require temporary removal from the family home, for a child's obesity over the wishes of his or her parents?
In Part II, this Note will consider the general standard for medical neglect and will then turn to the judicial application of this standard, and scholarly commentary, in the context of obesity. …