Legal Responsibilities in Choosing Not to Vaccinate
Sep 12, 2013

This guest post has been written by Dorit Rubinstein Reiss, a passionate vaccine advocate with intimate knowledge of the legal system who writes the blog Before Vaccines and serves as a Professor at University of California Hastings College of the Law.  In a recent article entitled “Compensating the Victims of Failure to Vaccinate:  What are the Options?”, she explores the legal ramifications associated with those that choose not to immunize themselves or their children.  In the post below, she briefly highlights the main points offered in the full article.

A German boy named Micha died last June after several years of agony from a rare but fatal complication of measles called subacute sclerosing panencephalitis (SSPE).  While still too young to be vaccinated himself, he contracted measles from an unvaccinated child in a pediatrician’s waiting room. Years later, SSPE erupted. One family’s choice not to vaccinate their child effectively destroyed another family.
In the United States, where health insurance coverage is more limited than in Germany, Micha’s parents could have incurred substantial medical costs on top of their incredible heartache and suffering. The question is, would it be reasonable to hold the unvaccinated parents liable for those costs?
In a recent blog post, Bioethicist Arthur Caplan suggested that in cases similar to Micha’s, the non-vaccinating parents should be held responsible.  He said:

“I think there should be a right … not to vaccinate your child.  But…. if your kid gets the measles…and makes my newborn baby die… shouldn’t I be able to sue you for the harm you have done?”

There are two arguments that can be used to support Caplan’s points and justify tort liability.  The first focuses on compensation for the victims. The medical and scientific consensus is that the risks of vaccinating are significantly smaller than the risks of not vaccinating.  Therefore, those that do not vaccinate are choosing the larger risk: an unreasonable choice. Since the tort of negligence was created specifically to compensate those harmed because of another’s unreasonable choice, the conditions of tort liability apply.
The second argument focuses on preventing externalities observed when parents roll the cost of their decisions onto others.  Several studies have shown that unvaccinated children are at increased risk of vaccine preventable diseases, and therefore more likely to transmit those diseases and cause others harm.  If parents are not held responsible and forced to pay when their unvaccinated child infects another, they will not consider those costs when deciding whether or not to vaccinate. However, assigning liability in these cases will encourage parents to include those costs into their calculation.

Certainly there are some legal challenges to consider here as follows:

No duty to act:

Normally, our legal system does not require people to pay for harms caused by their non-action. For example, if I see a baby drowning in a shallow pool of water and do nothing, I can’t be held legally responsible for the child’s death.  The United States system values personal autonomy, and considers telling people to act as a greater imposition than requiring that if they act, they act carefully. Nonetheless, tort liability means that a parent who does not vaccinate could be liable and there are reasons to think it’s appropriate.
First, the decision not to vaccinate is not typically a passive one. Parents who consciously choose not to vaccinate their children often claim that they’ve done extensive research and actively defend their decision against pressure from doctors and others. This is not a stand-and-watch situation: it’s more of an active choice.
Second, the “no duty to act” rule exists for policy reasons, and has exceptions, also for policy reasons. There are good reasons to create such an exception here. We should usually respect parental medical choices for children, unless they are not in the best interest of the child or can negatively impact others not actively involved in making that decision.   For example, courts imposed liability when parents did not give ADHD medication to a child, and that child hurt someone else and they ruled that a TB patient that refuses treatment may be involuntary committed to protect others.  The courts have demonstrated that when your right to refuse treatment affects others, it can come with a price.

Causation:

To win their case, plaintiffs have to show that, more likely than not, the defendant caused their harm. They do not need to prove this with absolute certainty or completely rule out other causes.  There are almost always other possible causes, and if the law were to require absolute certainty, plaintiffs would lose even in cases where the defendant was very likely to have caused the harm. In some cases it’s impossible to prove who caused the harm to the plaintiff. In the case of suffering with a preventable disease, it may be impossible to prove causation, such as if there was an outbreak of pertussis in a community and the plaintiff was a ten-year old who went out in public a lot.  But if an unvaccinated child traveling abroad contracts measles and upon return introduces that disease into a previously uninfected community, the disease can often be traced to an originating patient.   Therefore, the ability to prove causation will have a large impact on the ruling in each specific case.

There are several common counter arguments to consider in discussing the legal liability of choosing not to vaccinate.   For instance:

Why single out unvaccinated children? What if a child is infected by a vaccinated child? To explain this, it’s best to understand that our system does not impose liability just because harm happens. We impose liability when someone made an unreasonable choice and that choice caused harm. In the case of preventable diseases, if parents vaccinated their child and took a reasonable precaution than there was no purposeful negligence, even if they were unlucky and the precaution failed.  On the other hand, a non-vaccinating parent who chose not to take the precaution may be deemed negligent.  
What about compensation to children who may be injured by a vaccine, why can’t they sue? The fact is that there is already a no-fault compensation system, known as the National Vaccine Injury Compensation Program, which is available to children who have suffered rare cases of vaccine injury. The argument remains that if we are compensating children injured by the choice to vaccinate, why are we not compensating those injured by the choice to not vaccinate? 
What if the unvaccinated individual had obtained a school immunization exemption? School immunization requirements are created by legislatures, based on a desire to prevent outbreaks.  The existing exemption policies represent a community’s choice to incur a certain level of risk.   But the state’s choice to allow some children to attend schools, even if they aren’t vaccinated as required, should not deprive  families from seeking  compensation for specific harm or injury due to negligence from those who seek special permission not to adhere to the law. In closing, I would like to state that personal autonomy is important. I would not normally support criminal sanctions against parents who choose not to vaccinate (it might be different if a parent directly put a child a risk by that choice, e.g. refusing a rabies vaccine after a child was bitten by an unvaccinated animal). But autonomy should be accompanied by responsibility. If you choose to reject expert opinion and believe you know more than the majority of doctors, scientists, and health officials, you should not roll the costs of that choice onto others. The legal system can, and should, hold those responsible for harm if it is determined that their actions led to another person’s suffering.

Let us know your opinions by participating in this online poll and commenting below:

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For more discussion on this topic consider the following: 

Harvard Law Bill Of Health Guest Post: No liability for failure to vaccinate? The case has not been made: A Response to Mary Holland by Dorit Rubinstein Reiss, LLB, Ph.D.
Voices for Vaccine’s Member Call: Vaccine Refusal and the Law, Wednesday, September 18th, 12 noon Eastern/9 am Pacific.  Dorit Reiss and Director of the California Immunization Coalition, Catherine Flores Martin, will speak to members about the legal aspects of vaccine refusal.  To join the call email info@voiceforvaccines.org.

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