Heather Callaghan

Activist Post

New Yorker Jennifer Parker was alarmed when she found out that a public health nurse vaccinated her 5-year-old daughter, Madison, against her wishes. This was during a flu outbreak in late 2009. Jennifer fought the action, citing negligence and battery and sued both the school district and health department in St. Lawrence County Supreme Court. The school district was let off the hook.

Matters seemed resolved as that court ruled in her favor saying that the Public Readiness and Emergency Preparedness Act (PREP) couldn’t extend to just any situation where government workers could administer drugs without consent. But that ruling was short lived.

The health department appealed and it was the Third Judicial Appellate Court that overturned the previous ruling, deciding on November 21st this year, that PREP trumps, or rather, preempts state laws regarding that matter.

Did you know that we are apparently in an unending state of public health emergency?

The emergency in the situation above? H1N1 flu…

Madison Parker was given a Peramivir inoculation for H1N1 flu virus.

But this ruling was based on an assumed intention of Congress and the assumption of public health emergency:

we conclude that Congress intended to preempt all state law tort claims arising from the administration of covered countermeasures by a qualified person pursuant to a declaration by the Secretary [of Health and Human Services]. So because of this ruling, at least in New York, PREP’s arbitrary mandates override state laws that allow exemption from seasonal flu vaccines. Health workers can vaccinate children without their parents’ permission or knowledge because they deemed it a public health emergency and that it was Congressional intention.

According to Courthouse News , Justice Karen Peters wrote a statement for the five-judge panel:

We must presume that Congress fully understood that errors in administering a vaccination program may have physical as well as emotional consequences, and determined that such potential tort liability must give way to the need to promptly and efficiently respond to a pandemic or other public health emergency…

So, mistakes happen…but it’s best for the public good.

The Justices were “unpersuaded” by Parker’s argument that immunity under these circumstances didn’t mean any deemed qualified person could administer drugs against her will.

And we wouldn’t want to let a good government contract go to waste. Peters also wrote:

The immunity provisions of the PREP Act are triggered where, as here, the vaccines are purchased pursuant to a federal contract or agreement.

Peters said that because there are “exclusive federal remedies” (the Federal Government’s just cause under PREP), that reason further supports preemption. Therefore, the decision concluded “the complaint must be dismissed for lack of subject matter jurisdiction.”

And what have we here? Another compensation program! That should make everything all better, right?

Courthouse News wrote:

PREP also created the Countermeasures Injury Compensation Program, which handles claims by individuals who suffer adverse reactions to devices, medications or therapies that have been recommended for use in public health emergencies, the decision notes.

Peters further noted that separate federal causes of action exist for wrongful death or serious physical injury resulting from misconduct by licensed health professionals.

So, not only is PREP admitting and setting up funds for very possible injuries upon administering vaccinations, but they themselves are immunized from liability in civil liberties violations – administering drugs against a person’s will. Great swerve guys – same MO every time.

Brian Shilhavy over at Health Impact News made some great points about the case:

Points like these, civil liberties, and state exemptions for religious, philosophical, and medical reasons exist but are not often upheld. Especially when the Federal Government can arbitrarily declare “state of emergency” and trump state rulings. It also seems like for anyone in this type of situation it might be better to sue only individuals involved, not governmental departments – what do you think?

Read other articles by Heather Callaghan Here