Marijuana patient sues state after daughter develops MRSA in foster care

A medical marijuana patient is suing the state after being denied custody of his infant daughter for more than a year because social workers wanted him to undergo drug treatment.

William Fisher eventually won the court battle for custody, but not before his daughter developed a serious medical condition while under state care.

Fisher filed suit against the Washington Department of Social and Health Services in U.S. District Court, contending his daughter developed a drug-resistant infection in the foster home where the agency placed her and did not receive proper treatment.

The state previously dismissed a claim against the agency, and a spokeswoman for the department said it would not comment on pending litigation. The foster care provider said the girl did receive treatment.

The lawsuit covers a period in 2013 and 2014 when Fisher was fighting for custody of his infant daughter. She had been placed in a state-licensed foster home at 7 months old after Fisher’s then-estranged wife attempted suicide. Fisher is a medical marijuana patient. With a doctor’s recommendation, he used the drug for a back injury he suffered in 2007. But when he filed for custody, Child Protective Services workers asked for a court order that he meet certain conditions, including that he undergo inpatient drug treatment for marijuana.

A family court commissioner agreed with those conditions. Fisher appealed, saying opioid drugs prescribed for the pain left him unable to work, and Superior Court Judge Ellen Kalama Clark reversed the requirement for drug treatment.

“The purpose of treatment is to help the person stop using the substance, and here Mr. Fisher has a valid reason and medical prescription for using marijuana,” Clark wrote in January 2014. She ordered that he get custody of his daughter if he met other conditions such as attending parenting classes.

The department never admitted it did anything wrong, but it didn’t appeal Clark’s ruling. Fisher received final custody in April 2014 while living in Chattaroy. The two currently live near Boise.

By the time he received custody, Fisher said, his daughter had contracted methicillin-resistant Staphylococcus aureus, or MRSA, a type of infection sometimes called a super bug because it is so difficult to cure. His daughter should have been treated right away while she was in the foster home, he contends.

“She had not been given the proper treatment. It was ignored,” Fisher said in a recent interview. “They had the chance to get rid of it.”

RaDean Petrie, who with her husband operates the state-licensed foster home in Davenport where Fisher’s daughter was placed, disputes that. She said the girl went to a Lincoln County clinic after developing a rash that Petrie initially thought could be measles. It was first diagnosed as streptococcus, and then a staph infection.

“It was treated,” Petrie said, although she was initially under the impression it was a more common form of staph, not MRSA. “We took good care of her and all we got out of him was trouble.”

No other child in their care has developed MRSA, she said.

The lawsuit accuses DSHS workers and the Petries of negligence, and says the agency “conducted a substandard home placement investigation” prior to placing the child in the foster home. She didn’t have to be put in foster care because Fisher and other members of his family were available to care for her, it adds. Fisher and his daughter’s rights were ignored while he was required to fight for custody of her in court.

Because his daughter has contracted MRSA, Fisher said, her life is complicated. She periodically gets small sores and when she goes to the doctor, she must make special arrangements to go after-hours when other patients aren’t present. She can’t be put in day care because she could infect other children under certain conditions, he said. She is being treated to keep the bacteria at bay, but can’t get the drugs to knock it out until she’s older, he added.

In January 2015, Fisher filed a $5 million tort claim against the state for placing his daughter in foster care rather than releasing her to him after his now-ex-wife attempted suicide. That claim focused mainly on what he said were unsubstantiated allegations against him of abuse, mental health issues and marijuana dependency as the reasons for delay, but does mention the child contracted MRSA while in foster care.

That claim was denied five months later when the attorney general’s Chief Torts Investigator Leigh Swanson ruled that it was without merit because “no evidence of tortious conduct on the part of DSHS staff” was found.

Fisher’s attorney, Douglas Phelps, said tort claims are routinely rejected by the state, setting the stage for lawsuits. “I’d like to see the state change the way they handle things,” Phelps said.

Fisher’s lawsuit doesn’t list a dollar amount, but asks the federal court for damages that cover permanent impairment of earnings, pain and suffering, and “loss of enjoyment of life.”