The Rights of the Unvaccinated Child: Tort Liability

Feb 18, 2014

This is the second post in a five-part series which addresses the legal rights of the unvaccinated child.

This post is written by guest blogger Dorit Rubinstein Reiss who is a Professor of Law at the University of California Hastings College of the Law in San Francisco, CA. She examines the social policies of vaccination in various articles, blogs and law journals and in this series, she elaborates on the legal mechanisms that are available to protect children against the risk of non-vaccination. A detailed explanation of each post in the series appears at the conclusion of this article.

Can an Injured Child Sue a Parent Based on Their Choice Not to Vaccinate?

This post examines whether a child can sue her parents if the parents choose not to vaccinate the child and the child then suffers serious harm or death as a result of a vaccine preventable disease. In those cases, an argument can be made that it is appropriate that the parent, who decided against expert advice and against the balance of the risks not to vaccinate the child, to bear the financial costs rather than the innocent child.

There are a number of situations where this could happen. First, upon reaching majority (usually age 18) an unvaccinated child could decide to sue her own parent. Alternatively, if the child ends up in the custody of a guardian other than the one who chose not to vaccinate, that guardian could sue on behalf of the child. Or, if the child has died and someone other than the parents has control of the estate, they might be able to bring suit. And finally, in extreme circumstances, a guardian ad litem, who has been appointed by the state to represent the child’s best interests and make decisions on behalf of the child, could take legal action on behalf of the child.

What does the Law say?

There are two potential tort claims here: in most circumstances the claim would be a negligence claim. In a narrower set of circumstance, the child can sue for battery.

Negligence Cases:

In some ways, it would be easier for a child to sue her parents for her own injury than for someone infected by an unvaccinated child to sue. One of the obstacles to tort liability to strangers is that normally the law does not allow people to sue others based on their failure to take action – in this case, failure to vaccinate. But the parent/child relationship is an exception to that rule: parents have a duty to actively take care of their children who depend on them to act (Restatement (Third) of Torts §40). While I found no tort cases directly on point, probably because of parental immunity, multiple criminal law cases refer to a parent’s duty to actively provide medical care to the child.

The heart of negligence is determined by whether the defendant’s conduct was unreasonable. There are two powerful arguments that not vaccinating your child is unreasonable. One way to assess reasonableness is focusing on community norms. Over 90% of the United States population vaccinates. Democratically elected representatives, who are elected to represent the community, are involved in enacting legislation that governs public health efforts and promotes vaccination. The other standard commonly used to assess reasonableness is a rudimentary cost/benefit analysis, which examines whether the risks created – in this case by not vaccinating – are greater than the costs or risks of vaccinating. While vaccinating carries risks, those risks are small. Modern vaccines are very, very safe and the choice not to vaccinate carries its own, larger risks. Under either approach, not vaccinating could be considered negligent behavior.

To win a legal case, the plaintiff has to demonstrate that the defendant’s unreasonable action caused her harm. She also has to show that the harm is not too remote or unusual and that there’s no other policy reason to absolve the defendant. The first requirement is usually named causation, or cause-in-fact. The second is usually referred to as proximate cause or legal cause.

Causation should be fairly straightforward in these cases. While no vaccine is 100% effective, childhood vaccines are very effective, with several of them protecting 95% or more of recipients. Given this data, the harmed child could make a very compelling case that vaccinating would, more likely than not, have been able to prevent a case of disease. Also, since contracting a vaccine preventable disease is exactly the expected harm from not vaccinating, it’s neither unusual nor especially remote, and therefore fulfills the requirement of proximate or legal cause.

There is, however, a potential obstacle to tort liability in these cases: the doctrine of parental immunity. Since the 19th century, most state courts have not allowed children to sue their parents in torts. Several modern rationales for this include the courts’ hesitation to have judges and juries decide what makes for acceptable parenting, as well as the concern that in the presence of an injured child, courts will ignore legitimate cultural and individual differences in parenting styles. Other rejected rationales include preserving family harmony, concerns about collusion and a concern about depleting family resources. These reasons mean that many jurisdictions still have some form of parental immunity.

States can be divided into three groups, each of which takes a different approach (see Bonin v. Vannaman, 261 Kan. 199, 236-238 (Kan.,1996) for a good summary):

1. Some jurisdictions kept parental immunity, subject to only specific, narrow exceptions. That, for example, is what Arkansas does (Thomas v. Inmon, 268 Ark. 221 (Ark. 1980). It’s also the approach in Connecticut (Dubay v. Irish, 207 Conn. 518 (Conn.,1988)). In those jurisdictions, unless one of the exceptions applies, children cannot sue their parents in torts. None of the acknowledged exceptions cover the situation of the unvaccinated child.

2. Other jurisdictions removed parental immunity, but kept an exception for what they consider is part of normal parenting, including decisions involving “ordinary parental discretion with respect to the provision of … medical and dental services.” The classic case setting this approach is the Wisconsin Goller v. White, 122 N.W.2d 193 (Wis. 1963). This approach is also followed in New York (Holodook v. Spencer, 36 N.Y.2d 35, 364 N.Y.S.2d 859, 324 N.E.2d 338 (1974)), Washington (Zellmer v. Zellmer, 164 Wash.2d 147 (Wash., 2008), and with some variation, Illinois (Cates v. Cates, 619 N.E.2d 715 (Ill. 1993)). Under this approach too, medical decisions are immune from suits: children cannot sue their parents for negligent medical decisions, including the decision not to vaccinate.

3. A final set of jurisdictions holds parents to a reasonable parent standard, basically doing away with parental immunity and allowing the jury to decide issues of parental liability. The first jurisdiction to adopt this approach was California (Gibson v. Gibson, 3 Cal.3d 914 (Cal, 1971). Other jurisdictions adopting this approach include Arizona (Broadbent v. Broadbent, 184 Ariz. 74 (Ariz. 1995)), Missouri also followed it (Hartman v. Hartman, 821 S.W.2d 852 (Mo. 1991)) so did Pennsylvania (Miller v. Leljedal, 71 Pa.Cmwlth. 372 (Pa., 1983)) and Minnesota (Anderson v. Stream, 295 N.W.2d 595 (Minn. 1980)). Under this approach, the jury will have to decide if the parent was negligent in not vaccinating – in other words, the suit can go forth.

Only this last approach allows bringing a suit against the non-vaccinating parents.

For a fuller discussion of parental immunity, see:

• Tort Liability in the Age of the Helicopter Parent

• Liability of parent for injury to unemancipated child caused by parent’s negligence—modern cases 6 A.L.R.4th 1066. (first published 1981, constantly updated).

A Battery Case:

In addition to a negligence suit, there are circumstances when a child can sue a parent in a battery case. Since battery is defined as intentional, harmful or offensive contact caused to another person, (see Restatement (Second) of Torts §13, 18), then in such cases parental immunity would not apply (see Greenwood v. Anderson, 2009 Ark. 360 (Ark. 2009)). However, there would have to be an affirmative act by the parent that can be proven to cause harm, or given substantial certainty that such harm will happen. For example, if a parent takes an unvaccinated child to a chicken pox party with the intent of exposing that child to chicken pox, or intentionally exposes her to measles, and the child catches the disease and suffers in some way, the child may be able to sue for battery. Unfortunately, a parent who refuses a tetanus shot for a child who had just had a puncture wound (or lies to the doctors about the child’s vaccination status), can probably not be sued under this heading since battery can not occur by omission or by words alone. There has to be an affirmative act.

How Should the Law Change?

One important change that would help is to allow suits against parents for medical negligence.

While the case for parental immunity from negligent medical decisions seems weak, there appears to be three main concerns against removing immunity. First and foremost, that juries who are sympathetic to an injured child will impose liability on what should be considered ordinary parenting decisions, thereby reaching too far into the family sphere and turning it litigious. To some degree, this echoes previous concerns about family harmony; but as pointed out by scholars criticizing that argument, if a child has been seriously harmed, than lack of compensation can be detrimental and do more to interfere with family relations than improve them. It is problematic to allow the law to step into family life; we don’t want to turn relationships within the family into a court battle or to have the option of suing constantly on the table. But that reluctance needs to be balanced with compensating a child injured through the parents’ negligence, and deterring parents from making negligent decision.

Second, juries may impose liability for legitimate parental decisions because jurors disagree with the cultural preferences that drive the parent’s medical choices. This concern may be valid, but it does not seem to justify denying protection to a child against parental negligence that might result in serious injury or death to a child. Imperfect as they are, we do have other mechanisms to limit juries’ ability to discriminate against cultural minorities. For example, a judge can kick a case out using a “summary judgment”, a decision that as a matter of law, the parents’ behavior was reasonable and there is nothing to bring to the jury. And concerns about biases can come up in other contexts too, but we don’t bar other suits from happening.

Third, that allowing children to sue their parents may lead to parents being impleaded by other defendants. But sometimes parents are already required to pay part of the judgment, if they are found to be partly at fault. Their fault, and their contribution to the harm, can already be considered in many jurisdictions (See, e.g., Bonin v. Vannaman, 261 Kan. 199, 929 P.2d 754 (Kan.,1996); Perchell v. District of Columbia, 144 App DC 122 (1971)). So this reason does not work: all that parental immunity does is bar the child from being able to sue the parents: it would not protect the parents against liability to others.

The current legal approach leaves children with no monetary remedy for serious harms that occur from negligent medical decisions by their parents. It is also inconsistent with criminal statutes that allow prosecuting the parents for medical neglect in some circumstances. At least one case says:

“A fundamental concept of our legal system and a right guaranteed by our state constitution is that a remedy be afforded to those who have been injured due to the conduct of another.” Anderson v. Stream, 295 N.W.2d 595, 600 (Minn., 1980).

A move to the Gibson approach adopted by California, under which the parents can be sued and the jury decides whether they were negligent, would allow these suits to go forward.

The Restatement (Third) of Torts also seemed to be moving to allow these claims (§40). The Restatements are treatises about the law prepared by renowned lawyers and scholars. While they are not binding law, they often have a strong influence on its development and are referred to by lawyers and judges considering cases. The move towards general liability of parents that the restatement proposes may lead more jurisdictions in that direction.

Readers are encouraged to pose questions in the comment section below for the author’s review and consideration. Each of the remaining posts in the series will appear over the course of the next several weeks.

Summary of “The Rights of the Unvaccinated Child” Blog Series

Part 1: Setting the Legal Framework (click here to read)

Part 2: Tort Liability (see above)

Part 3: Can Parents Be Criminally Liable in Cases of Injury to an Unvaccinated Child? (click here to read)

Part 4: Under What Circumstances Is It Appropriate to Require Parents To Vaccinate? (click here to read)

Part 5: The Role of School Immunization Requirements in Protecting the Unvaccinated Child (click here to read)

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