Articles

A pox on your bank account: failure to vaccinate and its legal consequences

Here’s a question anti-vaxers may want to consider:

Can the parents of an unvaccinated child be held liable if their child becomes infected with a vaccine-preventable disease which then spreads from their child to another child or children?

Yes, they can.

In fact, for over 125 years, courts in this country have recognized a cause of action for negligent transmission of an infectious disease. In the first reported case (New York, 1884) the defendant infected the plaintiff with whooping cough. Cases since then have run the gamut: smallpox, tuberculosis, unspecified “venereal disease,” typhoid fever, scarlet fever, diphtheria, hepatitis, herpes, gonorrhea, HIV. If your favorite infectious disease is not on this list, don’t worry. The disease may vary, but the legal principles remain the same.

You’ve got WHAT?

As the previous paragraph suggests, one need look no further than plain old negligence for an entrée to the courts — the same legal principle that forms the basis of actions arising out of automobile accidents and slip and fall cases.

Here’s how the Court of Appeals of Maryland described the basic law of negligence and its application to infectious diseases:

The traditional elements of a cause of action in negligence may be stated as:

  1. A duty, or obligation, recognized by the law, requiring the person to conform to a certain standard of conduct, for the protection of others against unreasonable risks.
  2. A failure on the person’s part to conform to the standard required: a breach of the duty ….
  3. A reasonably close causal connection between the conduct and the resulting injury ….
  4. Actual loss or damage resulting to the interests of another ….

The notion of duty is founded on the ‘responsibility each of us bears to exercise due care to avoid unreasonable risks of harm to others.’ … ‘When a reasonable person knows or should have known that certain types of conduct constitute an unreasonable risk of harm to another, he or she has the duty to refrain from that conduct.’ …

One who knows he or she has a highly infectious disease can readily foresee the danger that the disease may be communicated to others with whom the infected person comes into contact. As a consequence, the infected person has a duty to take reasonable precautions—whether by warning others or by avoiding contact with them—to avoid transmitting the disease. ‘[As an example] if defendant knew that he was afflicted with smallpox it then became and was his duty to keep away from other persons, or should other persons approach him to notify them of the fact so that they might protect themselves.’

B.N. v. K.K., 538 A.2d 1176 (Md. Ct. App. 1988)(citations omitted)(emphasis added).

In this case, K.K., a doctor, transmitted genital herpes to B.N., a nurse with whom he worked at Johns Hopkins Hospital. (Hence the discrete initials instead of the names of the parties, although that privilege is not always granted to the litigants in STD cases.) Dr. K.K. and Nurse B.N. had a sexual relationship of several months’ duration during which time Dr. K.K. — rather ungallantly — failed to tell Nurse B.N. about his infection, even though he knew his diagnosis and on at least one particular occasion knew that he had an active case.1

While the facts were unique to the case under consideration, the Maryland appellate court correctly stated the law of negligence generally applicable in the 50 states. Some courts have added that the duty to exercise due care not to infect others is also grounded in the state’s interest in the prevention and control of disease. (Caveat: each state’s courts have the jurisdiction to create variations on the law of negligence, so, as has been said on this blog before, your results may vary.)

But what if one doesn’t know he has a contagious disease?

Actual knowledge is not required, although it makes for easier proof. Courts have found that in certain circumstances the infected person should have known, or, as it is sometimes put, he had constructive knowledge of his disease. This can be established on the basis of symptoms alone, without a confirming medical diagnosis, particularly where symptoms of the disease are well publicized, such as is true of HIV/AIDS infection and genital herpes.

Note that a “reasonable person” is the standard — what a reasonable person knew or should have known. Thus, being merely unaware (in cases where the “reasonable person” would have known) or willfully ignorant of the disease is no excuse.

Once a duty to act with due care is established through actual or constructive knowledge of one’s disease, the infected person is charged with, at the least, warning those with whom he comes in contact that he has a communicable disease (allowing them to choose to stay away) or himself choosing not to engage in activity which would spread the disease to others. If he fails to do so, the second element of negligence — breach of his duty — is established.

A tougher problem might be to show that the diseased person’s conduct was the cause in fact of the plaintiff’s injury, the third element of proof in a negligence case. Even though she catches the same infectious disease as is suffered by the defendant, the plaintiff must still show the defendant was in fact the source of her disease. Depending on the disease, this can be accomplished through expert testimony concerning, for example, how contagious the disease is, the incubation period, and DNA testing of the disease strains.

Finally, there must be actual damages, and there usually are, in the form of medical expenses. (The collateral source rule prevents the offset of health insurance payments against the plaintiff’s recovery.) In cases where the defendant’s conduct was particularly egregious, punitive damages might be awarded. Other types of damages are discussed below.

No two negligence cases are exactly alike. There will always be factual variations to weigh in determining liability. In general, however, negligent transmission of infectious disease cases will turn on two issues: (1) Did the defendant know, or should he have known, he was contagious, and (2) Was he the cause in fact of plaintiff’s disease. Once those two are established, the defendant’s lack of due care will almost always be a given, as will at least some damages. Of course, in some cases the facts may show contributory negligence, or even consent, by the plaintiff.

While negligence is the most common, and easiest to prove, claim against a defendant who has transmitted an infectious disease, it’s not the only one. Actions for fraud, intentional infliction of emotional distress, the tort of battery, other forms of intentional tort, and actions based on premises liability (for failure to warn of a communicable disease on one’s property) have all been the subject of suits based on the contraction of an infectious disease.

Some states have a law making it a crime to intentionally transmit HIV to another through sexual contact. If that is not the case, the crimes of battery and reckless endangerment may offer the possibility of prosecution for any infectious disease transmission given the requisite proof of intentional or reckless conduct.

So sue me! 

So let’s apply these lessons to a perennial topic at SBM — parents who refuse to vaccinate their children because of unwarranted fears about vaccine safety. What part such children might be playing in the current pertussis epidemic is a question under investigation by public health authorities, as pointed out in a recent post by Dr. Steve Novella.

First, note that in the case of vaccine-preventable childhood diseases, it’s not the child who is calling the shots. (Sorry!) Children under a certain age (usually 18) are deemed legally incapable of making decisions about their health care. The parents make those decisions and it is the parents who are legally responsible for the consequences of their decisions.

Of course, as the standard for determining negligence is what a “reasonable person” in the same or similar circumstances would do, how could that standard ever be applied to children? The “reasonable toddler?” No such thing.

Second, it does not matter WHY the parent chose not to vaccinate in establishing liability. The parent may have exercised his statutory privilege of opting out for religious or philosophical reasons, but that’s not the equivalent of a “get out of jail free” card for all the consequences of that decision.

In fact, it can help the plaintiff establish liability by showing that the parent knew, or should have known, her child was vulnerable to vaccine-preventable diseases and that this, in turn, made it more likely that her child would transmit these diseases to unvaccinated, not fully vaccinated and even vaccinated children.

In one New England Journal of Medicine2 article the authors point out:

  • Children with non-medical exemptions are at a greatly increased risk for acquiring and transmitting vaccine-preventable diseases;
  • In one study, at least 11% of nonexempt children who acquired measles were infected through contact with an exempt child;
  • Outbreaks of vaccine-preventable disease often start among persons who refused vaccination, spread rapidly within unvaccinated populations, and then to other subpopulations, such as vaccinated children.

In cases where there is not a confirmed diagnosis, I would argue that reasonable parents should have been on high alert for symptoms, given their child’s increased susceptibility. While the parent of a vaccinated child could be excused for not thinking his child, broken out in little blisters, might have chicken pox, the argument can be made that the parent of an unvaccinated child shouldn’t be given that consideration.

As one treatise states:

The defendant’s membership in a group at high risk for development of a particular infectious or contagious disease, his or her involvement in patterns of behavior likely to result in contraction of a disease, and/or his or her exposure to a disease in circumstances likely to lead to contraction of the disease are additional factors which may assist the plaintiff in establishing constructive knowledge. If any combination of the factors stated above would put a reasonable person on notice of the need to inquire further, the defendant will be charged with constructive knowledge of any facts reasonable inquiry would have disclosed.

22 Causes of Action 1, at 18 (Westlaw, accessed June 4, 2010).

“Group at high risk?” “Behavior likely to result in contraction of a disease?” Sounds like a description of the unvaccinated child.

An insolent question

With all of this in mind, we turn to a hypothetical posed by Dr. David Gorski:

What would the liability be of the parents of a child who refused to vaccinate if their child infected other children, leading to serious harm (such as measles encephalitis). Let’s say the causation could be proven very strongly, for instance by the sequence of the measles virus in the unvaccinated child matching exactly the measles that infected and harmed other children. Say the children who were harmed were fully vaccinated against MMR (remember, MMR is not 100% effective).

Slam dunk, Dr. Gorski! With a few caveats.

Certainly, if the parents knew, or should have known from symptoms, that their child was infected with measles and then put him into a position where he might infect other children, and causation has been established as you suggest, then the parents would be liable to the injured children for their pain and suffering and to their parents for all medical and other expenses incurred in taking care of their ill children. If the encephalitis had lasting effects, the defendant parents would also be liable for the continuing care of the children, the children’s future wages, and the parents’ loss of their children’s help and support. If any of the children actually died, the amount of loss would depend on the wrongful death law of the state where this occurred as the method for calculating those losses varies from state to state. Then there is the possibility of punitive damages.

In other words, this could run into hundreds of thousands, even several million, dollars, depending on the number of children injured and the extent of their injuries.

But … factual variations might influence the outcome. If the parents of the unvaccinated child knew the other children were vaccinated, the finder of fact (either the jury or, if a bench trial, the judge) might determine they were not negligent. It would depend on whether a reasonable person should know the vaccine is not 100% effective. If the parents of the injured children knew or should have known the unvaccinated child had the measles, and the uncertain effectiveness of the vaccine, then their own negligence might reduce their recovery, but not that of the children. And so on.

“Chicken pox parties” present an interesting case. For the parent supplying the diseased child to the “party” the prospect of liability should be particularly troubling. She is not negligently spreading her child’s disease — she is intentionally spreading it. Intentional torts automatically subject the defendant to the possibility of punitive damages, which are usually based on the defendant’s net worth. The whole point is to make sure the defendant is financially punished for her actions — in other words, to take enough money that it hurts.

Punitive damages are on top of actual damages, such as medical bills, and pain and suffering. As in the above hypothetical, while the recovery of parents subjecting their children to the virus can be reduced — perhaps eliminated in this case — because of their actions, the award to the children cannot, and it is the children who are entitled to punitive damages. It could turn out to be a very expensive party.

And what about the physician? What role does he or she play? Well, possibly the role of “defendant.” Courts in a number of jurisdictions have found that in certain circumstances a physician is liable to a third party who contracts a contagious disease from the physician’s patient. One of these circumstances is the physician’s failure to inform the patient how to avoid the spread of the disease, such as by avoiding specific at-risk conduct. Another is giving the patient inadequate or incorrect information. The physician does not need to know that this third person even exists and the third person does not have to rely on the physician’s incorrect advice to hold the physician liable.

As one court in Pennsylvania said,

the duty of the physician treating a patient with a communicable disease is to prevent the spread of the disease, not for the benefit of the patient, whose health has already been compromised, but for the benefit of those third parties ‘within the foreseeable orbit of risk of harm.’

Troxel v. A.I. DuPont Institute, 450 Pa.Super. 71, 675 A.2d 314 (Pa. Super. 1996)(citations omitted).

I would argue that this duty to third parties requires a physician to warn the vaccine-refusing parent, and the parent who chooses the “alternative” vaccine schedule (a la Dr. Bob), of not only the heightened risks to her child resulting from vaccine refusal or delay, but also the risks to other persons to whom her child could spread disease. This information would include the symptoms of the preventable disease and how to avoid infecting others. Otherwise, beware of small third parties bearing service of process coming at you from “the foreseeable orbit of risk of harm.”

Closing argument

In sum, the state’s interest in preventing the spread of communicable diseases manifests itself not only in mandatory vaccine laws, but also in impressing a duty to avoid the spread of disease on those who are infected with, or who are at high risk for contraction of, a communicable disease. Where the diseased are children, the responsibility for fulfilling this duty falls on the parents. As well, physicians of high risk or infected patients must properly instruct patients in avoiding transmission of disease to others. Those who breach their duty to avoid the spread of communicable disease may be liable to those injured for damages.

Parents who refuse vaccination may be willing to forsake their children’s health for their religion or their philosophy, but once that choice adversely affects someone else’s child, they will have to pick up the tab.

Notes

1. I have no sympathy for Dr. K.K., but do note that it must be a huge bummer for one’s negligent transmission of genital herpes case go all the way to the state court of appeals and be immortalized in published case law.  Future defendants in such cases might want to consider settlement.

2. Omer SB, Salmon DA, Orenstein WA, et al., Vaccine Refusal, Mandatory Immunization, and the Risks of Vaccine-Preventable Diseases, N Engl J Med 2009; 360:1981-1988.

Posted in: Legal, Medical Ethics, Public Health, Vaccines

Leave a Comment (56) ↓

56 thoughts on “A pox on your bank account: failure to vaccinate and its legal consequences

  1. Jann,

    You may have no sympathy for Dr KK but without knowing more of the story I have limited sympathy for Nurse BN. When sex is at issue, people lie. I never asked anyone if they had an STI when I was doing the online dating thing because I wouldn’t have had much reason to believe a negative answer. It’s unreasonable to expect complete truthfulness from someone who’s afraid that giving the wrong answer means they won’t get laid.

    If getting an STI would be so upsetting to you that you would be willing to take it “all the way to the state court of appeals,” then insist on barrier protection.

    Sure, insisting on barrier protection can be difficult to do, especially if you’re horny. By the same token, disclosing an STI can be difficult to do in those circumstances too.

    If Nurse BN was unable to insist on barrier protection because Dr KK was in a position of power with respect to Nurse BN, that does change things. Then it becomes an abuse of power issue.

    *** *** ***
    Back to the topic at hand. Some diseases, like polio, have an asymptomatic contagious phase. If I got polio from someone who was asymptomatic, could they be liable simply for being unvaccinated?

  2. Epinephrine says:

    Nice! Now, can Jenny McCarthy (and others) be liable for having caused harm via incitement? It’s one thing to make a choice oneself, but encouraging others into negligence should be more serious.

  3. Dawn says:

    Very nice post, Jann. Some questions, regarding the “pox parties”. In those cases, the non-diseased-child parents are also intentionally exposing their child to the disease. If their child suffers lifelong sequelae, can they still sue the “contact child”‘s parents?

    Can a guardian of the court implicate the damaged child’s in contributory neglect? (As a child of the 60′s, I was the ‘contact child’ at a pox party, and one of my friends suffered from severe skin scarring from the pox he got from me. Could his parents have sued mine if that happened today? Back then, it was just considered bad luck.)

    Can we implicate dear Dr Jay Gordon who, on Orac’s thread, has posted that he doesn’t vaccinate, and if he has to do so, will only give the DTP (!) under 24 months, but prefers not to do so at all, especially if the child is a boy.

    “My vaccine schedule? Either none or just a DPT in the first 24 months of life. I think that there’s a greater risk vaccinating males under 24 months and would prefer not to unless there are special circumstances. I use very few other shots except the Varivax as a child approaches ten years because teen and adult pox are nasty and even a little dangerous especially during pregnancy. I give Hep B vaccines to nursing student/moms and dads, other medical moms and dads and higher risk teens and college kids. ” (comment 281 on the Vaccine Exemptions in California threaten herd immunity, posted August 27, 2010 @3:15am)

  4. Scott says:

    I agree with Epinephrine – and I’d be particularly interested to know about Jay Gordon. As an MD it seems plausible the standards to which he would be held are different than Jenny.

  5. Squillo says:

    Very timely article.

    I just read a blog post by a pregnant San Diego mother of 3, who suspects her unvaccinated-by-choice children have pertussis.

    She even notes in the blog post that she’s aware that the vaccine isn’t 100% effective, and that infants are at highest risk for complications.

    Commenters actually congratulate her on her thoughtfulness for rescheduling her OB appointment to avoid infecting infants in the waiting room.

  6. windriven says:

    Great stuff, Ms. Bellamy. Following the judicial logic of constructive knowledge as I (probably poorly) understand it, couldn’t homeopaths and other purveyors of the more egregious forms of woo be sued by patients or their survivors? It isn’t difficult to imagine plaintiff’s counsel leading Delwood Demento, N.D. through an elucidation of the many merits of, say, homeopathy and then thoroughly demolishing his testimony with a succession of expert witnesses.

    One presumes that NDs, DCs, and other ‘practitioners’ carry malpractice insurance. I wonder what their rates are compared with those paid by, for instance, MD general practitioners? What about reiki-ers (-ists?)? “Your honor, I never touched her, I swear!”

  7. David Gorski says:

    I just read a blog post by a pregnant San Diego mother of 3, who suspects her unvaccinated-by-choice children have pertussis.

    Got a link to that story, by any chance?

  8. Draal says:

    ““Chicken pox parties” present an interesting case. For the parent supplying the diseased child to the “party” the prospect of liability should be particularly troubling. She is not negligently spreading her child’s disease — she is intentionally spreading it.”

    And what of the parents who knowingly take their kids to a “chicken pox party” so their kids may come in contacted with the infected child? Are they liable for anything? And what if the unifected child’s parents sign a waiver?

  9. MKirschMD says:

    The case against parents who put other kids at risk seems straight forward. If you send you kid with active TB to school, and you know (or should know) the risks this poses to others, then there should be legal accountability. If a parent refuses a vaccine for his child, and the child dies of this preventable disease, is the parent immune from prosecution? Does the age of the child in this hypothetical matter?

  10. Todd W. says:

    @Dawn

    Some questions, regarding the “pox parties”. In those cases, the non-diseased-child parents are also intentionally exposing their child to the disease. If their child suffers lifelong sequelae, can they still sue the “contact child”’s parents?

    The way I understand it is that yes, they can sue on behalf of their child. The parents themselves would probably be unlikely to be able to sue for their own distress, medical expenses or lost wages, since they knowingly contributed to the injuries.

  11. Donna B. says:

    IANAL, but I’m confused about the state’s role in a tort case… regardless what interest the state may have concerning public health, is that relevant?

    Can a plaintiff argue the state’s possible case in a case between two ‘civilians’?

  12. Th1Th2 says:

    So who the hell infected the unvaccinated child and why would the parent of that child nonchalantly exposed his/her child to the source of infection?

  13. windriven says:

    @Th1Th0

    This may be a new high (low) of incoherence for you Thing.

    You obviously know that Andrew Witty* infected the child. As you surely know, Witty managed this feat by masquerading as the Tooth Fairy thereby gaining access to the child’s room in the middle of the night. Therefore, the child’s parent(s) didn’t ‘nonchalantly expose’ their child to the source of infection.

    *Andrew Witty is CEO of GSK, manufacturer of DTaP vaccine.

  14. daedalus2u says:

    What this means is that if an epidemic passes through an unvaccinated child, then the pediatrician of that child who did not recommend the “standard of care” vaccination schedule could be held financially responsible for every case of vaccine preventable disease downstream of that child.

    Since the scientific, medical and legal issues are so clear cut, any such doctor would be very wise to settle.

    The pertussis epidemic in California will probably result in a number of lawsuits. Since vaccine preventable diseases are reportable, then a good lawyer for the victims will be able to get the identity of the pediatrician of the other victims to know who to sue.

    I suggest that any lawyers who want to recover something for their clients had better be quick because some doctors that don’t recommend vaccination also don’t carry malpractice insurance. There might not be much left after the first few cases.

  15. Prometheus says:

    “A tougher problem might be to show that the diseased person’s conduct was the cause in fact of the plaintiff’s injury”

    Not so difficult anymore, as long as the pathogen from the plaintiff and the defendant can be obtained. Sequencing of viral DNA or RNA can establish relatedness. Even bacterial pathogens can have the sequence of their CRISPR regions(s) and intergenic spacers analysed to show if they are from the same lineage.

    Prometheus

  16. daedalus2u says:

    San Diego county has the third highest number of cases of pertussis in the current epidemic; 297, after Fresno (337) and San Louis Obispo (306). Followed up by Marin (280), Orange (220) and Kern (190).

    http://www.cdph.ca.gov/programs/immunize/Documents/Pertussis%20report%208-24-2010%20-%20For%20Release.pdf

    Pertussis is a mandatory reportable disease in California.

    One of the infants that died was in San Diego county.

  17. vtmom says:

    What does this all mean, however, for a family with a child with an infectious disease such as Hep B, who do not disclose his illness to schools/daycares/etc. If a vaccine is available (and often required) and schools and daycares say they practice universal precautions, and disclosure of the illness will stigmatize the child, then can the parents be held liable? Everything I have read says that parents are not required to disclose infectious diseases such as Hep b or HIV.

  18. SkepticalLawyer says:

    Nice exposition of the law, but I respectfully disagree with your conclusion, and especially with the certainty with which you expressed it. You’re in danger of getting excommunicated from the Brotherhood of Lawyers for not saying, “It depends.”

    Although you have convincingly shown the liability of a person who has a disease and wrongfully communicates it to someone else, it’s quite a leap to say that a parent who fails to vaccinate a child is in the same category. Although it’s certainly a non-frivolous argument for the expansion of common-law negligence principles, I dont’t think that you can say that under present law there is a duty to third parties to vaccinate your own child.

    What I would love to see, though, is a lawsuit by a non-parent “next friend” of a non-vaccinated child who contracts a preventable disease against the child’s parents. I think the law is presently clear enough that a parent owes a duty to a child to use reasonable measures to prevent the child’s contraction of a preventable disease.

  19. wales says:

    If this liability scenario had any validity then pertussis and influenza vaccination rates among adults would be much higher than they are (especially among health care workers!) and the courts would be full of these cases. After all, CDC attributes some 30,000 US deaths each year to influenza. And the states would be prosecuting unvaccinated parents and grandparents who transmit pertussis to their own infants and grandchildren….

  20. wales says:

    And don’t forget liability for hospital-acquired pertussis among infants!

    http://www.cdc.gov/mmwr/preview/mmwrhtml/mm5722a2.htm

  21. Interesting, but if I were the juror, I think I would have a hard time with the proof that child A got any airborne or casual contact disease from child B. While it looks like you could prove they had the same strain, does that eliminate the question of all the other people with the same strain that child A may have come in contact with (via air or doorknobs)?

    I’d also be considering the likelihood that child A could have gotten the disease from another vaccinated child who had a milder case.

    Also, many viruses are contagious before they have obvious symptoms. And others, whooping cough, for example, would be contagious before a reasonable person may suspect it is more than a cold.

    But mostly, as a parent who supports vaccination, this tactic rubs me the wrong way. My intuition suggests that it would be just as likely to push parents to have sympathy with anti-vaxers as it would be to encourage (well in this case strong-arm) parents into vaccinating.

    Not expecting a lot of agreement on that point. :)

    As lawsuits go, I would prefer one against a prominent anti-vax doctors who is making money spreading misinformation. Class action suit always has a nice ring to it, but I don’t know if any of that is legally feasible.

  22. Jann Bellamy says:

    Many good questions and comments.

    @AlisenCummings:
    Being unvaccinated is not in and of itself negligent. But if you know (or should know) that you have an infectious disease then you have a duty to exercise due care so that you do not transmit it to others.

    @Enpinephrine, Scott :
    I’ve thought about the possible liability of Jenny et al. for spreading misinformation but so far haven’t come up with anything. Other issues in the law of negligence and the First Amendment keep getting in the way.

    @Dawn, Draal:
    If the parent intentionally exposed his child to the infectious disease, the parent’s recovery might be reduced or eliminated by his contributory negligence, but not the child’s. I did not research the issue of waiver, but I doubt it would be enforceable against the child in this instance.

    @Dawn, Scott:
    If Dr. Jay Gordon is an M.D. (I’m not familiar with him) and he advises parents not to vaccinate their children, he could be held liable for malpractice if his advice fell below the standard of care for M.D.s and caused damages.

    @windriven:
    NDs and DCs are held to their own standard of care, so it would depend on whether their actions fell below that standard. DCs are required by law to carry malpractice insurance in at least some states, I don’t know about all. Nor do I know if NDs are required to carry malpractice insurance in states where they are allowed to practice. MDs’ malpractice insurance premiums are much higher than DCs because MDs deal with really sick patients in difficult situations, e.g., a no-pre-term care, crack-addicted mother delivering a baby v. back pain; surgery for a malignant brain tumor v. shoulder pain, etc. etc.

    @MKirshMD
    I doubt the parents could be prosecuted for not vaccinating per se, especially if they followed their state’s law on exemptions. However, parents can be prosecuted for child abuse and neglect, so I think it would depend on how the child got pertussis and what kind of care they got for him once it became obvious that he was infected. I don’t see how the child’s age would make a difference in prosecuting the parents but I have not researched that issue.

    @Donna B
    The state’s interest in preventing the spread of infectious disease manifests itself in a civil tort case in the standard of care to which the plaintiff is held because one of the considerations courts take into account in fashioning tort law is public policy. The state is not actually involved in the individual cases.

    @Dedalus2u
    Well, not every case downstream – I doubt a court would find that the physician’s duty of care extended that far, and there would be the issue of intervening causes down the line that would break the chain of causation between the physician and the infected person.

    @vtmom
    With any infectious disease, the courts agree that the infected person or the infected child’s parents have a duty to prevent the spread of disease to others. Under the facts you present what the parents are doing may very well be what a “reasonable parent” would do and would therefore be sufficient to defeat any claim of negligence.

    @SkepticalLawyer
    Wow – I thought the post was chock full of qualifiers such as “caveat,” “but,” “I would argue,” “possibly,” “it could,” “if,” “would depend on,” as well as, “No two negligence cases are exactly alike. There will always be factual variations to weigh in determining liability.” If you could be more specific about my unwarranted certainty, perhaps I could better reply.
    I don’t say “that under present law there is a duty to third parties to vaccinate your own child.” I do say that once the parent knows or should know that the child is infected the parent has a duty to avoid the spread of the infectious disease to others – that is well-settled case law.

    @Wales
    I think there are several reasons the courts are not full of these cases. First, in the average case the damages, if any, would not be sufficient to file suit, or at least not enough to attract a plaintiff’s attorney to represent you. Second, the fact that there are cases of transmission resulting in disease and death does not mean that anyone was negligent in these cases. Negligence is required to impose liability. My post does not deal with prosecutions by the state, only civil tort law, but in any event, the state could not prosecute criminally unless it could prove intent to harm the child or recklessness sufficient to qualify as criminal intent.

    @michelleinmichigan:
    Your questions about proof could best be answered by an expert in ID. Maybe one will chime in. Also, see comment posted by Prometheus.

  23. Sid Offit says:

    Very interesting article. I’ve always held that parents, while not responsible to vaccinate their children, are responsible to keep those children home should it become evident they pose a risk to others. A few points however:

    Chicken pox parties” present an interesting case. For the parent supplying the diseased child to the “party” the prospect of liability should be particularly troubling. She is not negligently spreading her child’s disease — she is intentionally spreading it
    ————
    I’d guess the party would be at the house of the child with the chicken pox, so, unless the parents of the host child were kidnapping the attendees of the street, it seems the parents of the attendees would be responsible.

    How, in your view, does a chickenpox party – tiny risk for the benefit of long term protection differ from the tiny risk of allowing a child to play football for the benefits derived from participation in that sport?
    ———————————————

    As well, physicians of HIGH RISK or infected patients must properly instruct patients in avoiding transmission of disease to others. Those who breach their duty to avoid the spread of communicable disease may be liable to those injured for damages.

    Seems a stretch to call the non-vaccinated high risk. For example in 2007 there were 71 cases of the measles in the entire country (and no cases of rubella) so I don’t see how vaccination status places on in a high risk group – unless you’re simply asserting one would be in a low absolute risk group while at the same time in a HIGHER relative risk one

  24. Science Mom says:

    @ Sid,

    Seems a stretch to call the non-vaccinated high risk. For example in 2007 there were 71 cases of the measles in the entire country (and no cases of rubella) so I don’t see how vaccination status places on in a high risk group – unless you’re simply asserting one would be in a low absolute risk group while at the same time in a HIGHER relative risk one

    Vaccination status absolutely changes the risk of contracting and transmitting a disease. Of course the actual risk depends upon vaccine effectiveness and disease epidemiology. Using your example of measles, tell me how unvaccinated are not high-risk:
    http://www.cdc.gov/mmwr/preview/mmwrhtml/mm57e222a1.htm

    “The boy’s measles immunoglobulin M (IgM) positive laboratory test result was reported to the county health department on February 1, 2008. During January 31–February 19, a total of 11 additional measles cases in unvaccinated infants and children aged 10 months–9 years were identified. These 11 cases included both of the index patient’s siblings (rash onset: February 3), five children in his school (rash onset: January 31–February 17), and four additional children (rash onset: February 6–10) who had been in the pediatrician’s office on January 25 at the same time as the index patient. Among these latter four patients, three were infants aged <12 months. One of the three infants was hospitalized for 2 days for dehydration; another infant traveled by airplane to Hawaii on February 9 while infectious."

    And: http://www.cdc.gov/mmwr/preview/mmwrhtml/mm5733a1.htm

    "Among the 131 measles patients, 123 were U.S. residents, of whom 99 (80%) were aged <20 years (Table). Five (4%) of the 123 patients had received 1 dose of MMR vaccine, six (5%) had received 2 doses of MMR vaccine, and 112 (91%) were unvaccinated or had unknown vaccination status. Among these 112 patients, 95 (85%) were eligible for vaccination, and 63 (66%) of those were unvaccinated because of philosophical or religious beliefs (Figure 2)."

    SM

  25. Mark says:

    Very interesting. I wonder if there are any cases specifically against healthcare workers who refuse vaccination and then transmit influenza to patients? Establishing the chain of transmission in such a case would be a bit difficult, but not impossible. It would seem that holding these individuals to a higher standard of behavior would be easier in court. I am an infectious disease physician and feel that many healthcare workers are beyond reason and logic when it comes to vaccination. It is shameful given the training these folks have supposedly recieved. Perhaps a financial incentive would have more effect? I also wonder what impact the public reporting of healthcare worker vaccination status would have on the situation.

  26. wales says:

    Mark has touched upon something that is of great importance on the topic of vaccination in particular and disease transmission in general. The majority of blog posts (this one included) and comments focus on the small percentage of parents who exempt their children from vaccination and the impact of pediatric vaccination exemption on herd immunity.

    I believe that the low level of adult and especially health care worker vaccination is much more detrimental to herd immunity than the small percentage of pediatric exemptions. CDC states that kindergarten vaccination coverage rates exceed 90% except for influenza vaccine. When you add up the facts, the high rate of pediatric vaccination, the fact that pertussis is endemic (J. Cherry estimate of 800,000 to 3.3 million cases annually in the US) and that fact that health care workers overall have abysmal rates of hand hygiene compliance and vaccination it appeas that the real “chink in the armor” for herd immunity lies with adults and specifically health care workers. Physician’s offices and hospitals are conduits for communicable disease, unvaccinated health care workers facilitate the transmission of these diseases. Because the general public is mostly unaware of the fact that pertussis can be and is acquired by newborns in the hospital, and that parents and grandparents and other caregivers are the primary transmitters of pertussis to infants, it appears easy to blame the small percentage of vaccination exemptors. A deeper inquiry reveals that the situation is more complex and that blame may be placed where it is not due, or at least that the blame should be shared more widely. Pro-vaccination websites and articles focus on the one school-age child with measles who infected 6 or 7 other kids (and shaming the child’s parents), but not on the one undervaccinated healthcare worker who infected 11 newborns with pertussis (a much more dangerous situation). Healthcare workers, by virtue of their healthcare education, should be held to a higher standard than the general public.

    I commented elsewhere that a campaign to encourage hand hygiene compliance might find success if the analogy of herd immunity is used. Getting healthcare workers to believe that by washing their hands they are creating a protective cocoon for their patients (or preventing a lawsuit for themselves!), and that by not washing their hand they are acting selfishly and spreading disease (the same coercive tactics being used to encourage parents to vaccinate their children) might have some success. The ironic part is that while parents who choose exemption often do so because of the perceived and real risks of vaccination, healthcare workers who don’t wash their hands have no such rationale. Perhaps a few well-publicized liability lawsuits directed against hospitals and specific healthcare workers would begin to change the situation for the better.

  27. The Blind Watchmaker says:

    Are Vaccines Safe?

    That is the question on the Detroit Fox2 News website.

    We need educated votes! The poll is half-way down and to the right.

    http://www.myfoxdetroit.com/

  28. wales says:

    Regarding pertussis, again, it is difficult to diagnose precisely. I found the following article on this subject to be helpful in understanding the issues. The editorial note at the end of this article is most informative. Note figure 2, the small percentage of cases actually confirmed by culture.

    http://www.cdc.gov/mmwr/preview/mmwrhtml/mm5633a1.htm

  29. SkepticalLawyer says:

    Jann:

    Thanks for the response to the comments. It was your beginning statements, ending with “Yes, they can,” and the “Slam dunk, Dr. Gorski” comment that led to my admittedly snarky comment, for which I apologize. You do make some appropriate qualifications throughout.

    You said:

    I don’t say “that under present law there is a duty to third parties to vaccinate your own child.” I do say that once the parent knows or should know that the child is infected the parent has a duty to avoid the spread of the infectious disease to others – that is well-settled case law.

    That statement came as a surprise to me. I read your post as arguing that the mere act of not vaccinating leads to liability. The knowledge of a child’s infection seemed to me to be just a link in the proximate causation chain.

    But let me ask you this: If your only point is that “once the parent knows or should know that the child is infected” then the parent has a duty, how is vaccination or non-vaccination relevant? I understand your statement that the non-vaccination could be used as evidence of knowledge, or constructive knowledge, of the illness, but I read your post to be an argument for direct liability for failing to vaccinate. If I mis-read it, then never mind.

    What’s your position on this scenario?: Parent doesn’t vaccinate Child. Child contracts infectious disease, but before symptoms appear, child infects a third person. Assume everyone agrees that had no reasonable parent, or even pediatrician, would have known or even suspected that Child had contracted the disease and was contagious. Is Parent liable to third person (assuming causation and damages can be established)? If so, what is the duty that was breached?

  30. SkepticalLawyer says:

    OK, that should have been “failure to vaccinate” instead of “act of not vaccinating.” There’s no such thing as an act of not doing something.

  31. “There’s no such thing as an act of not doing something.”

    Oh I don’t know, I am pretty actively not putting away the laundry right now. :)

  32. Forgive me if I missed this, but, I’m also wondering if the (very small, rare) medical risk of vaccinating would be a factor in the above described hypothetical lawsuit.

    As I see it in the case of the doctor and the nurse, disclosure of his herpes status, on the doctor’s part, would entail no medical risk to him. Keeping a child at home to prevent transmission of a disease, does not entail a risk to that child.

    So, those example don’t cover that one is taking a very small, rare risk when vaccinating a child.

    Who decides what level of risk is reasonable for the individual child, legally, that is. I understand the scientific risk/benefit of vaccinating.

  33. penguinsix says:

    What is a “reasonable person”?

    This is the problem I would see in some parts of the country. Take for example Marin County, CA where there exist some schools with > 50% unvaccinated. What is the ‘standard’ that is expected of a reasonable person if a person can argue ‘I simply did what the majority of my neighbors were also doing’? While community customs are not indicative in their own right, they could be a relevant external factor.

  34. kvaeth says:

    @penguinsix:

    A jury would determine what the “reasonableness” of the civil defendant’s conduct, assuming the case went to trial. Thus, you are correct that the prevailing norms among a defendant’s peers would influence this determination. Juror selection would be key in such a case.

  35. Jann Bellamy says:

    @SkepticalLawyer:
    I have been known to make the occasional snarky comment myself, so no problem there.
    Again, no I am not saying that failure to vaccinate is in and of itself negligent, particulary if the state allows it under an exception to mandatory vaccination. It is the failure to protect others from the infectious disease that is negligent.
    “What’s your position on this scenario?: Parent doesn’t vaccinate Child. Child contracts infectious disease, but before symptoms appear, child infects a third person. Assume everyone agrees that had no reasonable parent, or even pediatrician, would have known or even suspected that Child had contracted the disease and was contagious. Is Parent liable to third person (assuming causation and damages can be established)? If so, what is the duty that was breached?”
    No liability, because no duty to act for the protection of others in preventing the spread of the disease arises until the parent knows or should have known of the presence of the disease.

    @penguinsix
    “What is the ’standard’ that is expected of a reasonable person if a person can argue ‘I simply did what the majority of my neighbors were also doing’? While community customs are not indicative in their own right, they could be a relevant external factor.?”
    The reason the parent failed to vaccinate the child doesn’t matter — he or she may well have been acting within state law by not vaccinating — but once the parent knew or should have known the child has an infectious disease the parent has a duty to prevent the spread of the disease from his child to others.

  36. Jann,

    Then why would failure to vaccinate have any legal consequences at all? I’m not sure I understand the point.

    Non-vaccinators often claim that because their children will develop overt, easily-recognizable symptoms that they are more able to quarantine an ill child. They claim that vaccinated children with a mild (thus vague) case of whatever it is are much less likely to be quarantined and more likely to transmit disease. Your post seems to play right into this argument.

  37. Harriet Hall says:

    Alison,
    That argument doesn’t hold water.
    1. Children are infectious before overt symptoms develop.
    2. Vaccination reduces the chance of getting infected in the first place.

  38. Harriet,

    Before symptoms develop, nobody is legally liable, vaccinated or not. Therefore vaccination status has no legal implication.

    After symptoms develop, only the parents of unvaccinated children will be able to behave in a reasonable, responsible manner as defined by law. As defined by law, responsible behaviour is keeping your child at home if you have a reasonable expectation that your child is sick and infectious. If your child is vaccinated and not obviously ill with something serious, then you cannot demonstrate the responsible behaviour that the law is looking for: you have no reasonable expectation that your child is ill with a dangerous infection and therefore cannot do the legally responsible thing and keep them home.

    I understand that ethically, the responsible thing to do is to vaccinate. There seems to be no legal argument to do so, however.

  39. Jann Bellamy says:

    @Alison Cummins:

    “Non-vaccinators often claim that because their children will develop overt, easily-recognizable symptoms that they are more able to quarantine an ill child. They claim that vaccinated children with a mild (thus vague) case of whatever it is are much less likely to be quarantined and more likely to transmit disease. Your post seems to play right into this argument.”

    Their “claim” is not supported by the evidence. See NEJM article cited in post.

  40. Th1Th2 says:

    Harriet Hall,

    “2. Vaccination reduces the chance of getting infected in the first place.”

    Nah. FYI, vaccination = primary infection.

  41. Jann Bellamy,

    Which part of their claim is not supported by evidence? That vaccinated children have milder symptoms?

    I understand that unvaccinated children are more likely to become infected and transmit disease, but the law isn’t interested in that.

    The law is interested in whether or not you are quarantining your sick children after they develop obvious symptoms. This may be irrelevant from an infection control standpoint but is the only thing relevant from a legal standpoint.

  42. “The law is interested in whether or not you are quarantining your sick children after they develop obvious symptoms. This may be irrelevant from an infection control standpoint but is the only thing relevant from a legal standpoint.”

    I think the argument that Jann Bellamy is presenting is that not vaccinating the child is equivalent to not quarantining after symptoms appear. Meaning that the parent should know that by not vaccinating or by using an altered vaccination schedule, they are increasing the risk of transmitting any required vaccine disease to someone else.

    But it all seems a bit murky to me. For instance, even though the parent knows the increased risk of transmission, they would also know the vaccinated children have a greatly decreased risk of getting a full blown case of the illnesses they have been vaccinated for.

    I guess that’s what Jann is talking about when she refers to “a reasonable person”. But I have to say, as a parent, I am often baffled by what is “reasonable” or normal precautions when it comes to children with a contagious illnesses. You just have such a broad spectrum of beliefs, from people who won’t vaccinate to people who think everything should be swabs with disinfectant between use and that sending a child to school with a cough or runny nose should be forbidden.

    Can you tell I’m getting ready for the new school year. :)

  43. micheleinmichigan:
    “I think the argument that Jann Bellamy is presenting is that not vaccinating the child is equivalent to not quarantining after symptoms appear.”

    I don’t think so.

    Jann Bellamy:
    “Being unvaccinated is not in and of itself negligent. But if you know (or should know) that you have an infectious disease then you have a duty to exercise due care so that you do not transmit it to others.”

    “Again, no I am not saying that failure to vaccinate is in and of itself negligent, particulary if the state allows it under an exception to mandatory vaccination. It is the failure to protect others from the infectious disease that is negligent.”

    Question from SkepticalLawyer:
    “What’s your position on this scenario?: Parent doesn’t vaccinate Child. Child contracts infectious disease, but before symptoms appear, child infects a third person.”

    Response from Jann Bellamy:
    “No liability, because no duty to act for the protection of others in preventing the spread of the disease arises until the parent knows or should have known of the presence of the disease.”

    It seems pretty clear that Jann Bellamy believes that not vaccinating your child has no direct legal implications.

    Someone who has vaccinated their child, say against pertussis, might not recognize the child’s cough as pertussis particularly if they don’t realize that the vaccine is not 100% effective. Legally, they would probably be considered reasonable if they continued to send their child to school or daycare.

    Someone who has not vaccinated their child and whose child is immobilized at home or in the hospital with a clear case of pertussis will be considered reasonable if they don’t send their child to school or daycare. They may be considered negligent and sued if they do.

    People who choose not to vaccinate their children believe that they will be able to recognize serious illness and also that they will be able to exercise due care and adequately quarantine their child – thus that they will not be legally liable, no matter how much infection their child spread before symptoms became obvious.

  44. Alison – okay, I see your point.

    Which makes me unclear on the sub-title “failure to vaccinate and it’s legal consequences”.

  45. micheleinmichigan,

    Me too.

  46. A subtitle of “failure to quarantine and its legal consequences” would make more sense to me, because that’s where the law applies.

    One discourse of non-vaccinators is that vaccine-preventable diseases aren’t serious, which may result in making little or no effort to quarantine even after symptoms develop. (Of course this is in contradiction to the other discourse that vaccine-preventable diseases are always recognizable and quarantinable.) This could result in a finding that someone was negligent in failing to exercise due care.

  47. grenouille says:

    This a little off topic, but I read the blog post that Squillo mentioned above and thought it raised more legal questions.

    The blogger is a surrogate mother who is currently pregnant. She is anti-vaccine and has kids at home who have whooping cough.

    If the baby she is carrying gets whooping cough as a newborn, doesn’t that leave the surrogate open to all kinds of legal problems? If, god forbid, the newborn died or had neurological damage, couldn’t the fact that she had infectious, unvaccinated kids in the home nullify the surrogacy contract?

  48. twinzs says:

    I have a question …seems curious to me… How do un vaccinated kids make vaccinated kids sick?
    The liability of the parents who dont vaccinate is the only issue presented….what about the understanding that is put forward to parents like me by doctors that the vaccination is necessary to protect my children and now I read that vaccinated kids can get sick from unvaccinated kids??? it causes me ask the question does this vaccination work?what about the liability of the doctors and the pharma company that makes us believe by telling us that my kid is safe and clearly its not the case!
    Are all the childhood diseases deadly???
    I just read an article in MACLEANS magazine that clearly put forward that chicken pox vaccine is causing shingeles in young adults and their not sure if the vaccine was such a good idea…there solution was to vaccinate more? I m really confused.
    So how do vaccinated kids get sick from unvaccinated kids?arent the vaccinated protected?isnt that the purpose of the vaccine? if there is an outbreak..aren t the unvaccinated kids going to be the ones who get sick,and my kids are going to be safe or that isnt true now?
    I look forward to some answers!!!
    thanks!

  49. Th1Th2 says:

    twinz,

    Your argument has a valid point. All the BS that these vaccine apologists are creating are directed towards the unvaccinated group as being the source of infection. Every one is susceptible and can be the source of infection. In fact, for a shingles to happen, one must have had a primary infection with VZV either with natural exposure to chicken pox or live inoculation with VZV. So parents who are conveniently exposing their child to be infected with chicken pox in a party and those who let their kids be injected with VZV are not helping in anyway to eradicate varicella let alone are the source of infection and further re-infection.

    As a parent myself, my obligation is to not let my child be exposed and infected by a sick child regardless of vaccination status. Only the uninformed will do otherwise.

  50. weing says:

    “I have a question …seems curious to me… How do un vaccinated kids make vaccinated kids sick?”

    I’m pretty sure you can figure this out by yourself. Just do some thinking and use your imagination.

    “what about the understanding that is put forward to parents like me by doctors that the vaccination is necessary to protect my children and now I read that vaccinated kids can get sick from unvaccinated kids??? ”

    Aw c’mon. Really? If your understanding is lacking, it behooves you to ask your doctor so that he can explain the difference between what is necessary and what is sufficient.

    “what about the liability of the doctors and the pharma company that makes us believe by telling us that my kid is safe and clearly its not the case!”

    If you can show that the pharma company or doctor tells you that your kids are now 100% safe from getting the infection after having the vaccine, then you have a good case. They would be liable for breach of contract.

    Haven’t read the article that you are talking about. Shingles is the reactivation if prior chickenpox. Remember “herpes is forever” once you get it, it stays with you, kept in check by your immune system. The level of antibodies falls with time. Because of the decrease in chickenpox cases since the use of the vaccine, people who have had chickenpox previously are no longer exposed to virus in their environment and their immune system isn’t activated to produce more antibodies, allowing them to fall. Once the antibodies fall below a certain threshold, the virus is freed and start multiplying and shows up as shingles.

    Personally, I think this is a great deal for the vaccine manufacturer. There are more cases of shingles and you can then sell them vaccine to prevent shingles. How terrible! Someone is going to make some money.

  51. Chris says:

    Twinzs, this video should answer your question on how child is not vaccinated can cause harm. I also urge you to read this article.

    Also, be aware that vaccines are not 100% effective, so even some vaccinated children will be not be protected.

  52. twinzs says:

    Weing!

    I m not that naive to not think for myself …my point is if the “all Seeing and all knowing ” medical doc says to me …you need to do this vaccination because your kid could die! pretty compelling…I ask what are the side effects? well there are pain swelling at injection site,in some cases and I quote” unfavorable outcomes of the vaccine in some kids like autism,however not proven in medical circles, fevers..etc…” I ask knowing this why are there changes in the schedule less frequent and less numbers per shot?
    the answer…” easier for us doctors at the beginning of the child life as we have your attention and the child typically sero converts more effectively” easier on the doctor?????? are there tests to see if the childs immune system has developed antibodies?(titers) . answers..”yes but we dont do them, too expensive”. So it seems that there are issues here that leave me thinking…what the %^&*?????
    what about the kids that get sick seriously from the vaccine…thats why the vaccine compensation plan is there,right? answer…” we have to spread the risk around!?!?!? for the better of the common good”?yes!!!!!
    WOW my jaw dropped….so as far as not asking questions being informed from my MD…what would you think if you were told this?

    Regards

    Twinzs!

  53. weing says:

    Your post shows that you really are a self-taught or google university graduate thinker. You lost me with the “all Seeing and all knowing ” and even more with the autism crap.

  54. Chris says:

    I was lost with the multiple question marks, exclamation marks and other random punctuation.

    Oh, yeah… since a child dying from measles or pertussis is so much more favorable to autism. What a tool.

    Just to be more helpful, a video that explains herd immunity math with graphical representation.

Comments are closed.