Home > Expert Insights, Policy, Preventable Diseases > The Cost of Vaccine Misinformation

The Cost of Vaccine Misinformation

April 18, 2014
This guest post was written by Dorit Rubinstein Reiss, Professor of Law at the University of California Hastings College of  the Law in San Francisco, CA.  In this post Dr. Reiss responds to questions we have received regarding who is liable when harm occurs as a result of a parent’s decision not to vaccinate – a decision often based on misinformation from a third party. 

Imagine the following situations:

Image courtesy of the Refutations to Anti-Vaccine Memes Facebook Page

Image courtesy of the Refutations to Anti-Vaccine Memes Facebook Page

In the midst of a measles outbreak a doctor who encourages selective vaccination, or vaccine rejection, sends a letter to his patients suggesting that there is no need for concern. The letter states that there has not been a measles death in the United States for over ten years. It goes on to say that the risk of contracting measles is small and makes the claim that measles does not pose a risk to healthy children. The information is incomplete, even inaccurate: measles is extremely contagious, it can kill or seriously harm a previously healthy child, and the unvaccinated are at very high risk.

Now imagine parents, relying on the content of this letter, decide not to vaccinate against measles. If their child contracts measles and (1) becomes permanently disabled or dies, or (2) infects an infant that suffers a very serious and permanent complication of measles, can the doctor be liable?

Alternatively, during the same outbreak, a member of an anti-vaccine organization publishes an article claiming that measles occurs mostly in the vaccinated, is actually caused by the MMR vaccine which also causes autism, and is a mild disease that should be seen as good for a child. None of these claims are true.

Previously I’ve suggested that, in certain circumstances, parents relying on such advice could sue the organization for misrepresentation if their child is hurt. But if the article is what convinces a parent not to vaccinate, and then their child contracts measles and infects an infant who suffers serious complications, can the parents of the injured child sue the anti-vaccine organization?

In both the situations detailed above, it’s possible that the third party could be liable if they are responsible for a parent choosing not to vaccinate their child, and that choice results in harm to another.

 Doctor’s Liability:

If a patient is harmed because a doctor advises against vaccines the case is relatively easy. Medical malpractice is defined by the standard of care in the profession and while there are different phrasings, generally speaking a physician is expected to act according to the professional custom. The fact is that professional associations, scientific publications, and the vast majority of physicians support immunizations and strongly encourage children to receive the recommended vaccines. Therefore, when a jury is faced with a case in which a child has been harmed or killed by measles, it will be difficult for a doctor to convince that jury that his statements (that measles is not dangerous and will not harm their child) were an acceptable deviation from the CDC’s immunization recommendations.

How may the case be different if the harm is not to a direct patient? What if the unvaccinated child infected another?

There is still a strong claim that the doctor should be liable in negligence to a third party. However, to win a negligence case you first have to show that the defendant owed the patient a duty of care. If there is no duty, it doesn’t matter how badly the defendant behaved. One simplified example we use is that of the baby in a puddle. Normally, one does not have a duty to rescue others; so if you see a baby drowning in a puddle, and you can easily save the baby but instead choose to walk by, the baby’s parents have no legal claim against you. You do not have a duty, so your behavior can be as reprehensible as you want.

Doctors, by virtue of their special relationship with their patients, owe a duty of care to their patients, including at times the duty to act. Courts have ruled that doctors, in some circumstance, may also owe a duty to third parties.

Several of these cases are related to infectious diseases. The famous case of Tarasoff v. Regents of University of California,  17 Cal.3d 425, 436-437 (Cal, 1976) explains that “[t]he courts hold that a doctor is liable to persons infected by his patient if he negligently fails to diagnose a contagious disease Hofmann v. Blackmon (Fla.App.1970) 241 So.2d 752), or having diagnosed the illness, fails to warn members of the patient’s family (Wojcik v. Aluminum Co. of America (1959) 18 Misc.2d 740, 183 N.Y.S2d 351, 357—358; Davis v. Rodman (1921) 147 Ark. 385, 227 S.W. 612;Skillings v. Allen (1919) 143 Minn. 323, 173 N.W. 663; see also Jones v. Stanko (1928) 118 Ohio St. 147, 160 N.E. 456).” Our system usually requires that if you act, you act reasonably and carefully. Therefore, if a doctor owes third parties a duty to act, than a doctor certainly owes those parties a duty to act carefully. So, one way for third parties to recover damages is through a regular negligence claim.

In fact, if it can be shown that the doctor knew that the statement was false – for example, someone with expertise told that doctor that measles can kill even healthy people – that doctor might be liable for an intentional tort, conscious misrepresentation that causes bodily harm. Liability for an intentional tort can lead to punitive damages (as opposed to regular negligence which does not lead to punitive damages and whereas recklessness – which is a very high degree of negligence – might).

Suing for Misrepresentation that Causes Harm as a Third Party

If a doctor or anti-vaccine organization provides false information that causes bodily harm, a third party may be able to use a different tort (such as the one analyzed here).

§311 of the Restatement (Second) of Torts states:

Negligent Misrepresentation Involving Risk Of Physical Harm 

1. One who negligently gives false information to another is subject to liability for physical harm caused by action taken by the other in reasonable reliance upon such information, where such harm results

a. to the other, or  

b. to such third persons as the actor should expect to be put in peril by the action taken. 

2.  Such negligence may consist of failure to exercise reasonable care

a.  in ascertaining the accuracy of the information, or

b.  in the manner in which it is communicated.

In other words, if a doctor advised a patient in a way that could lead to an infectious disease, that doctor may be liable to subsequent victims infected by her patient. The standard here is whether the doctor should have known that advice could harm someone.   Knowing the extent of training doctors receive in regards to infectious diseases and immunizations, it would be reasonable to expect that a doctor with any degree of experience could easily recognize the risk  of transmission to both the vaccinated and unvaccinated.

The same point applies to an anti-vaccine organization publishing inaccurate articles about misrepresentation. If an anti-vaccine article misrepresents the risks of measles and the measles vaccine, which then leads to a failure to vaccinate and an infection to a third party, than the third party would have a claim against that organization.

The only difference in this case would be whether reliance on the organization would be considered reasonable. An argument can be made that if a person relied on information from an anti-vaccine organization over the information from her doctor, or over more reputable sources like the American Academy of Pediatrics or the CDC, that reliance was not reasonable, and therefore the tort does not apply.

There are two ways to address these concerns. First, courts should consider relaxing the reasonable reliance requirement when the harm is to a third party. If the harm is to you, and you relied unreasonably, it’s fair to hold your bad choice against you; not so when your unreasonable reliance harmed an innocent third party. Why should someone be penalized for another’s gullibility? One way to clarify this is to say that as long as the anti-vaccine organization intended for people to rely on its information, it should be held liable. Another way is to say that as long as the organization presented itself as an authority, reliance on it was reasonable.

Second, the tort of conscious misrepresentation that causes physical harm could be used. It will often be hard to show that an anti-vaccine organization knew the information was false, given that many mistrust scientists, government and other sources and may actually believe what they’re saying. In this case, one could still argue knowledge by pointing to the strong evidence that refutes their claims. Alternatively, the tort of conscious misrepresentation says that an actor can be found liable if the actor knew “(ii) that he has not the knowledge which he professes.” If an anti-vaccine organization claims expertise, than a court can disbelieve them and hold them liable for making claims on an issue they don’t have the knowledge to make authoritative representation on.

The cost of the anti-vaccine misinformation is in harm and suffering. Those who make decisions based on misinformation – especially unvaccinated children and the victims who are subsequently infected by the unvaccinated – are the ones who bear the burden. It’s time to put the monetary costs where they belong: on those providing the misinformation that causes harm, whether that harm is intentional or negligent.  

 

 

 

 

 

 

  1. Anna
    April 18, 2014 at 12:46 pm

    Now I’m wondering if this would also apply to licensed acupuncturist ?

  2. April 18, 2014 at 1:48 pm

    Acupuncturists are snake oil salesmen. Acupuncture has no discernible health benefits and has, in fact, caused harm to many.

  3. reissd
    April 18, 2014 at 2:04 pm

    “Now I’m wondering if this would also apply to licensed acupuncturist ?” Depends on the scenario, I’d say. What kind of situation did you have in mind? The tort of misrepresentation that causes harm is pretty broad.

  4. Taylor
    April 18, 2014 at 3:29 pm

    Nekko, in fact, you have no idea what you are talking about. In fact, Acupuncturists have helped many I know.

  5. Lawrence
    April 18, 2014 at 3:58 pm

    Off-topic is off-topic – if you want to discuss Acupuncture, I would recommend you go here:

    http://www.sciencebasedmedicine.org/

  6. Taylor
    April 18, 2014 at 5:47 pm

    Off topic is off topic? Why thank you!

  7. April 18, 2014 at 11:29 pm

    fascinating Dorit. Thank you for writing it.

  8. jessica
    April 20, 2014 at 11:19 am

    While I’m generally against our sue hairy society I would love to see people start sueing these doctors and anti vaccination groups. Perhaps that would finally cause them to go away and quit spreading their harmful lies.

  9. April 21, 2014 at 8:03 am
  10. April 23, 2014 at 7:11 pm

    Does the argument that Dorit is pushing forward allow a doctor to be sued if in the course of administering a vaccination or after a vaccination, the patient dies because of anaphylactic shock or encephalopathy or grand mal seizures?

  11. Chris
    April 23, 2014 at 7:41 pm

    Mr. Rohde, wouldn’t those be covered under the NVICP?

    Anyway, what is the risk of harm from a vaccine versus a disease? What has a higher probability of causing a seizure: the MMR vaccine or measles?

    I ask because my son suffered a Grand Mal seizure from a disease before its vaccine was available. Last I looked there was no “National Disease Injury Compensation Program.”

  12. reissd
    April 23, 2014 at 8:45 pm

    “Does the argument that Dorit is pushing forward allow a doctor to be sued if in the course of administering a vaccination or after a vaccination, the patient dies because of anaphylactic shock or encephalopathy or grand mal seizures?”

    A. Where is the misinformation in that situation, the medical malpractice, or the problematic advice? The fact that there is a very rare chance of side effects does not make following the standard of care and vaccinating a situation of medical malpractice or misinformation. As the jurisprudence points out, bad results can happen in medicine even if due care is practiced. In other words, even without NCVIA, there would not be a viable claim in that situation, providing the doctor provided the vaccine information sheet – and even without that, the problem maybe informed consent, and it’s not clear there would be a violation of informed consent, indeed, there may well not be one (I can explain that further if someone wants) – not malpractice or misinformation. Currently, NCVIA preempts such suits.

    B. In spite of the fact that there would not be a claim in the regular courts in these circumstances except in very rare situations, the NVICP does offer compensation to a child in those circumstances. Without having to prove malpractice (which would be impossible, or near enough) or lack of informed consent (often challenging or non-existent).

    In contrast, a child harmed by misleading information about measles – especially in the middle of an outbreak – has no recourse to a no-fault compensation program that also covers lawyer fees.

  13. April 23, 2014 at 9:58 pm

    Dorit, nice try. But you should be aware that the NVICP is not a no-fault system as originally designed by Congress. You should be aware of the morphing of the program into a very litigious, adversarial process. NVICP was a good compromise at its origin. But now the NVICP is the exclusive remedy for all vaccine-related injuries or death. Congress wanted parties the ability to pursue in a Title III court if they were not satisfied after filing in the program. Compensation in the program is very difficult once the Table was reduced in 1995 and 1997. New vaccines are added with an incomplete Injury Table associated. Most of the injury claims filed in the last 5 years are autoimmune oriented. And no one, including CDC and IOM knows the extent of the new injuries or when or how they manifest themselves.

  14. reissd
    April 23, 2014 at 10:09 pm

    Mr. Rohde, no-fault means you do not need to show fault to win. That’s true of NVICP. In a court, a plaintiff would have to show a design defect. We use principles of negligence to show design defects. Plaintiff would have to meet that burden and show that. Plaintiff doesn’t have to in NVICP. While plaintiff can’t appreciate what isn’t there, it’s a big break.
    .

    Realistically, any process for determining liability can have an element of disagreement. NVICP may be more adversarial than plaintiff would like, but what is your criteria for litigious and adversarial? Compared to what, a court proceeding? Not really. Compared to a disability appeal in social security? Do you have evidence of that? By itself, describing it as “very litigious, adversarial” – without defining how, and comparing it to practical alternatives – doesn’t say much.

    The Supreme Court clearly disagreed with your interpretation of what Congress wanted. To remind you, the table injury was changed as new scientific finding came to light, suggesting vaccines do not cause, for example, seizure disorder.

    When plaintiffs bring in claims for things science suggests are not caused by vaccines, and when they cannot show causation, what’s the justification for compensating them?
    Showing a causal connection is a basic requirement when you compensate for something allegedly caused by something else. The table provides breaks when science supports causation; that’s an advantage to plaintiffs. In other cases, plaintiffs are held only to the usual standard in civil cases – more likely than not. That’s it. Over 50%. If a plaintiff cannot meet this low burden, cannot show a vaccine caused their injury – for example, because the science shows vaccines do not cause that type of injury – why should they be compensated?

    The program was designed to compensate vaccine injuries. Not everything that goes wrong in a family life. It might be appropriate to have a fund to help every family with a child with special needs, but NVICP isn’t it.

  15. Chris
    April 23, 2014 at 11:07 pm

    Mr. Rohde, who do I contact for the injuries caused to my son by an actual disease?

    And please tell me which vaccine on the American pediatric schedule causes more seizures than the diseases.

  16. April 23, 2014 at 11:40 pm

    Chris, my sincere wishes for you and your son’s best recovery. But you are talking to the wrong person about your question. I am not an anti-vax person like Dorit and Offit and Mnookin and all the crazies in the media want to paint us as. Most of us that are unfairly protrayed as such, are actually about safety and insuring parental choice. Most of us have vaccine injured children ourselves and see first hand what that damage is all about. I am on the record with testimony in federal cmts of the NVAC, ACCV, and ACIP to promote parental choice, to return to single vial measles and rubella vaccinations and to return vaccine manufacturing processes from human fetal DNA back to animal cell production. Dorit, Offit and others want our society to move towards a medical establishment that controls all citizens, all medical decisions by them, without parental choice. Our nation was not found on medical fascism principals. Dorit’s original post on this thread is just another attempt to poison the well, by proffering a concept that our children are at fault for having reactions to vaccinations, it is all genetics, and they envision a society, much like a police state of suing parents or holding them liable for decisions that they make for their families. That might work in 1940’s Europe, but not in the United States. Vaccines are one of the greatest medical advances. No doubt. But there are risks and we need to carefully examine those risks. Dorit states in her comments above that the Supreme Court would disagree with my interpretation of what Congress intended. Dorit talks a good game, but she does not understand the workings of the NVICP, but rather a 1st year law student’s reading of the statute. You can tell her that if she actually read the Bruesewicz decision and listened to the oral arguments for that case, you can determine that Scalia overreached and invented a reason to pay a favor to his pharma friends by shutting down the ability to go to court. Chris, I wish the best for your son. No one should have to suffer from disease or from a vaccine-related injury.

  17. Louis Conte
    April 23, 2014 at 11:41 pm

    Isn’t it time that people here read the NVICP Injury Table. Vaccines CAUSE encephalopathy – brain damage. Some of the cases of brain damage result in diagnosis of autism. Shouldn’t that information be publicly disclosed and openly debated before some whacky notion of suing people who choose not to take a drug?

  18. reissd
    April 23, 2014 at 11:50 pm

    A. “return to single vial measles and rubella vaccinations and to return vaccine manufacturing processes from human fetal DNA back to animal cell production. ” There’s no real evidence either of these would improve safety. To remind you, the single measles vaccine was not problem-free; having more shots means more of the ingredients anti-vaccine activists like to complain about; and the one time we had contamination was with animal cells – one reason for the move to fetal cells was that they are sterile. Not contaminated.

    B. “Dorit, Offit and others want our society to move towards a medical establishment that controls all citizens, all medical decisions by them, without parental choice.” Not sure where you get that. If you read my “Rights of the Unvaccinated Child” series, it’s pretty easy to see that’s not the case. I would say that I find the parental choice not to vaccinate problematic, from the point of view of the child’s right to health, but that is different from supporting removing choice.

    C. “proffering a concept that our children are at fault for having reactions to vaccinations, it is all genetics”Once again, I’m not sure where you got that from:
    1) Of course it’s not the fault of the child if that child suffered a vaccine injury.
    2) Nor it is anyone’s fault if they have a genetic condition.
    3) The most I can say – if that’s what you’re insinuating – is that the evidence is that autism is not a vaccine injury.

    D. I read the Bruesewitz decision, thank you. That’s what my comment meant – that the majority of the Supreme Court, both Scalia’s majority and Breyer’s concurrence – interpreted Congress’ intent in the act to be to preempt design defect suits.

  19. reissd
    April 23, 2014 at 11:52 pm

    “Isn’t it time that people here read the NVICP Injury Table. Vaccines CAUSE encephalopathy – brain damage. Some of the cases of brain damage result in diagnosis of autism. ”

    A. The Injury Table is supposed to reflect things science knows are caused by vaccines, but it’s not always up to date. My understanding is that recent science does not support the claim that vaccines cause encephalopathy.

    B. Autism is not brain damage. And encephalopathy is not autism. And see: http://lizditz.typepad.com/i_speak_of_dreams/2011/05/critiques-of-h0lland-et-al-unanswered-questions.html

  20. reissd
    April 23, 2014 at 11:53 pm

    The NVICP, as both of you know, has never compensated on a theory that vaccines cause autism. Using cases that found something else as evidence of a connection between vaccines and autism is highly problematic. Cases say what they say. They don’t show something else.

  21. April 24, 2014 at 12:26 am

    Dorit. Go back and read the recommendations from the IOM to the Sec’y of HHS in 1995. The Sec’y cherry picked the recommendations. And the redefining of encephalopathy that the Sec’y enacted was not from the IOM. And your use of referencing blogs to support a medical condition lacks credibility and foundation.

    Good night, I just do not have the time to post on all the articles that you are commenting on. Matter of fact, how do you do it?

  22. Lawrence
    April 24, 2014 at 4:39 am

    @Wayne – except that, medically, encephalitis isn’t autism – brain damage isn’t autism, and I notice that when you don’t like the message, you go ahead & attack the messenger…..

  23. Lawrence
    April 24, 2014 at 5:32 am

    @Wayne – and perhaps you should have a talk with your fellow travelers – they are starting to cross the line (again)…..

    http://thepoxesblog.wordpress.com/2014/04/23/what-kinds-of-threats-are-these/

  24. Chris
    April 24, 2014 at 7:59 am

    Mr. Rohde, my son was permanently disabled by his seizures over twenty years ago. He does have encephalopathy. There is no recovery.

    Mr. Conte: “Isn’t it time that people here read the NVICP Injury Table. Vaccines CAUSE encephalopathy – brain damage.”

    And so do diseases. Mr. Conte and Mr. Rohde, neither of you have addressed my question of whether diseases or vaccines have a higher risk of seizures, and the sometimes resulting encephalopathy. Now what are those risks? Give me the details.

    I do note one thing, the NVICP has only compensated 3340 claims in twenty six years, which would be over billions of vaccines. How does that compare to the number of kids, like my now adult son, disabled by actual diseases? How about the number that would have been disabled without vaccines?

    Mr. Rohde: ” I am on the record with testimony in federal cmts of the NVAC, ACCV, and ACIP to promote parental choice, to return to single vial measles and rubella vaccinations and to return vaccine manufacturing processes from human fetal DNA back to animal cell production. ”

    Based on what science? The MMR was approved in 1971. Provide the PubMed indexed studies by reputable qualified researchers that the MMR vaccine causes more damage than measles. What evidence dated before 1990 do you have that it causes autism in the USA during the 1970s and 1980s? And do you have an issue with HELA cell lines also?

    And lastly, what choice was I given when my son got sick from an illness? This was before the vaccine was available. Why would I ever choose to not protect any child from any disease?

  25. Narad
    April 24, 2014 at 2:51 pm

    Wayne Rohde (@waynerohde) :
    Congress wanted parties the ability to pursue in a Title III court if they were not satisfied after filing in the program.

    What is “a Title III court”? Wouldn’t it be simpler to just say “state court”?

  26. Narad
    April 24, 2014 at 2:57 pm

    Louis Conte :
    Isn’t it time that people here read the NVICP Injury Table.

    What, pray tell, leads you to think that it hasn’t been? What next, the lately popular claim that the Office of Special Masters is actually a “secret court”?

  27. Narad
    April 24, 2014 at 3:11 pm

    Wayne Rohde (@waynerohde) :
    But you are talking to the wrong person about your question. I am not an anti-vax person like Dorit and Offit and Mnookin and all the crazies in the media want to paint us as.

    Heh.

    “And also look into the facts of the decline of polio. It started several years before a polio vaccine was approved. But certain pesticides were eliminated….”

    Yes, it’s the incoherent Blaxsted “theory.” Harold Ramis’s death has something to do with vaccines, including the blatant falsehood that “Flu and Pneumonia vaccines are not recommended for vasculitis patients.” Fan of “The Refusers,” whose big hit is “Vaccine Gestapo.”

    Pull the other one.

  28. Keven
    April 27, 2014 at 1:22 am

    Almost anyone can be sued, but not the doctors who injure our children through vaccinations. They are protected from this. When doctors do extensive vaccine research and determine that vaccines are far from being proven safe, and they share this information with mothers and fathers then they can be sued. Something is very wrong with this. Like most Doctors i’d want to keep my mouth shut

  29. novalox
    April 27, 2014 at 2:11 am

    @keven

    So, do you have any actual proof that vaccines are much less safe than the diseases that they protect against? Because your statements flies in the face of established science.

    So, please, present some actual proof, unlike the other anti-vax trolls that have pulled a Brave Sir Robin when asked for proof.

  30. Chris
    April 27, 2014 at 11:05 am

    Keven: “When doctors do extensive vaccine research and determine that vaccines are far from being proven safe, ”

    Citation needed. Please provide the PubMed indexed studies showing a vaccine on the American pediatric schedule causes more harm than the disease.

  1. April 19, 2014 at 3:55 am
  2. April 19, 2014 at 11:57 am
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