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One of my favorite TV programs is Law & Order:SVU, an American police procedural crime drama television series set in New York City. It usually bases episodes on real news stories, but putting some twist on them. And for fans of the show, it is addicting.

In the spring of 2009, an episode entitled Selfish aired. The plot was about an immature, irresponsible young mother who was assumed to have killed her child. In a major plot twist (and actually one that caught me by surprise), the coroner determines that the child died from measles, in what turned out to be an outbreak of the disease in fictional New York City. The Assistant District Attorney then decides to prosecute the mother of the child who started the measles outbreak because she had refused to immunize her child for all of the reasons popularized by the vaccine deniers. Unfortunately, the producers of the show didn’t give us the full satisfaction of having that mother spend time in prison (and if one looked at the episode with even amateur legal eyes, it probably wasn’t going to happen).

But the episode is popular with many of us on the pro-science side, and I have tweeted when the episode is on a rerun somewhere.

I have often wondered if there was a legal consequence for not vaccinating a child. There are cases here and there where courts have found parent(s) who do not vaccinate their children to have violated laws. In a case in Ohio in 2012, a court ruled against a mother who refused to vaccinate her child, she claimed a First Amendment protection to practice a religion which she believed allowed her to not vaccine her child. The state took custody of her children, subsequently vaccinating them, and she lost all of her court cases against the state of Ohio. But this wasn’t quite a criminal case against the abusive mother, it was more that not vaccinating was included in the list of items which showed the state department of child protection, and subsequently the courts, that she was an unfit mother.

In July 2013, Dorit Rubinstein Reiss, a professor of law at the University of California Hastings College of the Law, published an article in the Cornell Journal of Law and Public Policy that specifically addressed legal issues that might be considered in compensating individuals who contracted vaccine-preventable diseases directly from children whose parents refused to vaccinate them for non-medical reasons.

The article asks the reader to consider a few pertinent issues:

This article asks whether parents who choose not to vaccinate their child should be liable if that child, at higher risk of infectious disease than vaccinated children, transmits a vaccine-preventable diseases to another. The article argues that a tort remedy in this situation is both desirable and appropriate. It is desirable to assure compensation to the injured child and the family, who should not have to face the insult of financial ruin on top of the injury from the disease. It is also appropriate to require that a family that chooses not to vaccinate a child fully internalize the costs of that decision, and not pass them on to others. This suggests that there should be a duty to act in this situation, since the nonvaccinating parents do create a risk. Even if this is seen as a classic situation of nonfeasance there are policy reasons to create an exception to the usual rule that there is no duty to act. As an alternative, it suggests adopting a statutory duty to act. It suggests that legal exemptions from school immunization requirements are not a barrier to liability, since the considerations behind those exemptions are separate from tort liability. It addresses the problem of demonstrating causation, and suggests in which types of cases showing causation would be possible, and when proximate cause can be extended from an index case to subsequent cases. Finally, it addresses some of the potential counter arguments.

The article thoughtfully discussed the story of an unvaccinated 11 year old child with a fever who was taken to a pediatrician in Germany. The boy, who was diagnosed with measles, unwittingly infected six other children in the same office, including three infants who were too young to be vaccinated with the MMR vaccine. Two of the children died from a rare but usually fatal complication of measles called chronic measles encephalitis, or subacute sclerosing panencephalitis (SSPE), a rare chronic, progressive encephalitis that affects primarily children and young adults, caused by a persistent infection of the measles virus. SSPE is incurable, although its progress can be slowed, individuals with SSPE eventually die after months, even years, of neurological deterioration.

One of the children, Natalie, was eleven months when she was exposed to measles in 2000. She recovered from the initial bout (a typical course for the disease), but developed SSPE in 2007. She lost her ability to walk, talk, and eat unassisted, and died in 2011, after a long period of “wake coma.” Another child, Micha was even younger. Five months old at the time of his initial infection, his SSPE presented in 2005, and the child eventually died in 2013. Although unrelated to this outbreak, I have written previously about the course of SSPE in a child that contracted measles.

The point of these stories is more than just children can die of measles, something that is denied by antivaccination groups, some of whom have measles parties so parent’s kids will get the disease, it’s more of a story about how unvaccinated children can not only catch the disease but pass it to those who are not protected.

Interestingly, Dr. Reiss states that parents do have the right to choose not to vaccinate their children. Of course, I am absolutely opposed to personal and religious exemptions to immunizations. I find both types of exemptions repugnant and based on ignorant, uneducated and unscientific beliefs. But where I agree with Dr. Reiss is that once the parent makes that incredibly dangerous choice to not vaccinate their children, then they can be sued if they cause harm to others.

Dr. Reiss describes two reasons for her position on the matter:

Compensation : Because approximately 95% of pre-Kindergarten children are vaccinated for most diseases, it is the community standard. Community standards are important legal parameters in law. For example, there are community standards to not drive fast in residential areas. Furthermore, the medical and scientific consensus, as established in reports published in peer-reviewed journals, is that the risks of vaccination are significantly, from a statistical point of view, lower than the large risk to the community of not vaccinating. Those parents that refuse to vaccinate their children are violating the community standards; and the family who is injured by a vaccine preventable disease contracted from a vaccine refuser should not have to pay (either monetarily or through illness or death) for someone else’s unreasonable and non-standard choice.

: Because approximately 95% of pre-Kindergarten children are vaccinated for most diseases, it is the community standard. Community standards are important legal parameters in law. For example, there are community standards to not drive fast in residential areas. Furthermore, the medical and scientific consensus, as established in reports published in peer-reviewed journals, is that the risks of vaccination are significantly, from a statistical point of view, lower than the large risk to the community of not vaccinating. Those parents that refuse to vaccinate their children are violating the community standards; and the family who is injured by a vaccine preventable disease contracted from a vaccine refuser should not have to pay (either monetarily or through illness or death) for someone else’s unreasonable and non-standard choice. Preventing externalities: Parents who refuse to vaccinate must consider all the extended costs of that decision. If those parents do not have to pay for the consequences that arise from their decision, like infecting other children, they will like not consider those costs to others who were uninvolved in that choice, when making the decision to not vaccinate.

There are some legal obstacles to suing families whose vaccine refusal has harmed someone else. Since I am not a lawyer, I’ll try to summarize as simply as I can. In general, the American legal system does not require individuals to pay for harm caused by inaction. In other words, if you could save someone’s life, without risking your life or well-being, you are under no obligation to actually save that life. You cannot be sued if you don’t lift a finger to save someone’s life. It’s a passive choice, meaning you did nothing actively to harm that other person, you just didn’t save their life.

On the other hand not vaccinating is not a passive act, it is an active one. In fact, vaccine deniers prove it’s an active choice when they state “I’ve study this on the internet, and I am convinced that Jenny McCarthy is right and vaccines do harm.” They ignore scientists, doctors, and that community standard. In this case, you aren’t passively watching someone die and not acting, the vaccine denier is choosing to not vaccinate, even though their choice may harm others. It is an active decision, not a passive one. Moreover, Dr. Reiss explains that courts have continually ruled that individuals have a right to a choice in medical treatment, they still bear the costs of the consequences of that choice.

Individuals who refuse to take antipsychotic medications are often committed to psychiatric hospitals if they refuse their medications. And if they harm someone because of the refusal, they are liable for that consequence.

To win a case against a vaccine refuser, the plaintiff has to show that more likely than not the defendant caused their harm, or the principle of proving causation. Plaintiff does not need to show with absolute certainty that the defendant caused their harm or to completely rule out other causes. Now there can be cases where it’s difficult to show that the vaccine refuser is at fault for harm. For example, some vaccine preventable diseases, like pertussis, have had large outbreaks lately, so it could be nearly impossible to point to one individual that caused the outbreak or passed the disease to another child. But if we have an area that has been free of measles and an unvaccinated child brings in measles, it can often be shown that it was more likely than not that child that infected others. So the ability to prove causation will depend on the case, but in some cases, it will be very possible.

The angry antivaccination world has already jumped on this story. They have asked, “if your child is vaccinated, why do you worry about my unvaccinated child?” Because only in the anti-science world are there absolutes. Vaccines may be 85-95% effective, but that doesn’t round up to 100% effective. And there are children who do have valid medical exemptions to vaccines. The, like the story from Germany above, there are children who aren’t vaccinated against some diseases, because we wait until they are 6 months old in some cases. So within a random group of children, some aren’t vaccinated because it’s not the time to do so, some did not develop an appropriate immunity, and some have a medical reason for not being vaccinated. A unvaccinated child, one whose parents chose not to vaccinate them, could infect a part of that random group.

They also ask, “what if a child is infected by a vaccinated child?” Although rare, it could happen. The legal system does not impose liability just because harm happens. We impose liability when someone did not take reasonable precautions, like vaccinations, and those choices caused harm. In this case, if a parents vaccinated, they took the reasonable precaution; it’s the non-vaccinating parent who did not. Furthermore, a parent, pro or against vaccinating, can be unreasonable in other way. For example, if they brought a sick child to school, knowing that they had some dangerous and highly communicable disease, then they are liable.

Dr. Reiss concludes her paper thusly:

A tort suit for failure to vaccinate addresses the scenario in which a child was killed or severely injured by another family’s choice to not vaccinate their child. It means the results (or consequences) of a legal choice spilled over and harmed others, and the question for the tort system is who should bear the costs of the harm. This article suggests that the family making the choice not to vaccinate, the choice that led to the harm, should bear the cost. It demonstrates how legal doctrine can support such a suit. It does not seek to penalize the non-vaccinating parents. But while the tort system can never really fix what happens to families like Micha’s and Natalie’s, it can in at least some cases prevent the insult of financial ruin to be added to the injury done to the child. It should do so.

In my version of the world, vaccines would be mandatory, except for established and documented medical issues, and there would be no lawsuits. But in this real world, if you’re going to choose to not vaccinate, despite all of the evidence, they you bear the price of that to not only your own children but those who might bear the brunt of your decision. Nevertheless, maybe we cannot have the satisfaction of the New York District Attorney going after vaccine refusers whose children infect others, but a few lawsuits may do more to change the direction of the vaccine trends than anything else. I can’t wait to see the first lawsuit.

Because, vaccines save lives.

If you need to search for accurate information and evidence about vaccines try the Science-based Vaccine Search Engine.

Key citation:

Reiss DR. Compensating the Victims of Failure to Vaccinate: What are the Options? (July 22, 2013). Cornell Journal of Law and Public Policy, Vol. 23, No. 3, 2014.

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