The Cost of Vaccine Misinformation
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:
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.
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.
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