The outbreak of anti-vaccine ignorance that has produced an alarming nationwide series of measles also has rekindled a simmering debate over the non-vaccinating parents’ legal exposure:
Should they be held liable for the threat their inaction has posed to innocent victims, and subjected to financial damages?
Dorit Reiss of UC Hastings College of the Law believes the answer is yes.
In a March 7 op-ed in the San Francisco Chronicle, Reiss revisited arguments she made in a 2014 law review article. Briefly, a family’s unreasonable decision not to vaccinate their children creates a danger not just for those children, but also for other people who may be exposed to disease if the children become infected.
Those innocent victims could include individuals who couldn’t be vaccinated themselves for various reasons, including infants too young to be vaccinated, or people whose medical conditions prevented their being vaccinated or compromised their immune systems.
“Any number of things may happen to the victim,” Reiss wrote last week. Measles can cause lengthy disability or death — from the acute infection or from a long-term complication. “In the best-case scenario, the family will have to take weeks off work. Someone has to pays for these costs. Why should that family pay, rather than the family whose choice to not vaccinate led to the harm? Suing for compensation could help.”
The context of this discussion is the rise in reported measles cases this year in 12 states, including California. As of March 7, according to the Centers for Disease Control and Prevention, 228 cases have been reported, indicating a trend likely to exceed the 372 reported for all of last year—itself the largest number since the 667 reported in 2014.
The majority of the infected persons were unvaccinated, the CDC says. The sources of the outbreaks typically were unvaccinated carriers who contracted the disease during visits to overseas hotspots where measles was endemic.
Three outbreaks in and around New York City, for instance occurred in Orthodox Jewish communities that resisted vaccinations, and therefore were vulnerable when travelers brought the disease home from Israel, the site of “a large outbreak.”
That brings us to the motivations of families that refuse vaccinations for their children. For the most part, they’re misinformed, often by anti-vaccination organizations peddling long-discredited yarns connecting the MMR vaccine (for measles, mumps and rubella) with autism.
As we’ve written before, the supposed link is the handiwork of Andrew Wakefield, a British physician who lost his license for fraudulently promoting the link. His claim has been utterly discredited, but still is promoted by credulous individuals like Jenny McCarthy, Robert F. Kennedy Jr. and Donald Trump.
Thanks to Wakefield and paranoid and irresponsible anti-vaccine activists, misguided parents exploited loopholes in child vaccination laws to obtain exemptions from the mandates for their children. California and some other states have taken steps to close the loopholes.
California outlawed “personal belief” exemptions — those based on neither medical nor religious grounds — in 2015, and almost immediately saw a rise in vaccine rates.
In 2014-15, only 90.4% of California kindergartners were fully immunized, below the 94% judged to be the minimum to confer “herd immunity,” or to protect even those who couldn’t be immunized for legitimate reasons. By 2017-18, the immunization rate statewide had climbed to 95.1%.
But the law also appears to have produced an increase in claimed medical exemptions. As my colleague Soumya Karlamangla recently reported, some of these are openly bogus. In one case documented by the CDC, two young unvaccinated brothers who may have exposed scores of others to measles received medical exemptions from a physician located “several hundred miles away” from their home.
That’s an indication of the difficulty of requiring parents infected with anti-vaccination ideology to listen to reason.
Reiss says state legislatures should make liability explicit for non-vaccinating families for the harm they may cause others. “When one family’s choice to not vaccinate imposes...harms on another, compensation should follow,” she wrote in 2014.
The framework of such laws could be the “duty to act” principle. In most cases, bystanders witnessing an injury or an impending threat can’t be held liable for failing to act to save the victim.
There are exceptions, however. A therapist who hears a patient threaten danger to another person has a duty to inform the potential victim. A bar owner can be held responsible for serving an intoxicated patron who then causes an injury by drunk driving. Many states relieve doctors of liability for trying to treat an emergency victim on the street.
Vermont, Rhode Island and Minnesota require bystanders at an emergency to provide reasonable assistance to a victim, even if it is only to call 911 — laws that the courts have upheld.
Reiss argues that non-vaccinating parents should be viewed as a more stringent case. They’re not merely bystanders failing to act, she says.
Although sometimes the failure to immunize is reasonable — when a medical exemption is warranted, for instance — in others avoiding vaccination is harder than agreeing to it.
Pediatricians urge immunizations upon parents presenting their children at their offices and clinics. Schools demand proof of immunization for incoming pupils. State and federal laws mandate child immunization, and the Affordable Care Act requires that insurers cover them without co-pays and outside the deductible. Governments and medical organizations ply parents with information attesting to the safety of vaccinations and the greater dangers of the childhood diseases they protect against.
“Parents who don’t immunize are making a deliberate decision,” Reiss says. “It’s unfair to let them off the hook for the consequences.”
Reiss is doubtful that making such parents financially liable for the harm caused by their failure to immunize their children will have much of a deterrent effect. Many won’t vaccinate anyway, perhaps because they’re convinced that the chances of disease are remote. But compensating the innocent victims of their behavior is reason enough to consider duty to vaccinate laws, Reiss told me.
She acknowledges that there are some complexities in imposing liability for non-vaccinating parents, but few that the tort system hasn’t dealt with in other contexts.
A family found liable for causing the infection of an innocent person may not have the resources to pay damages, but that’s not an uncommon development in injury cases. Pinpointing cause and effect — that is, linking a person’s measles infection to a specific unvaccinated child — may not always be possible, but epidemiologists often have been able to trace the course of disease transmission back to a specific carrier, and scientific analysis sometimes can identify the particular strain of an infectious disease.
“We compensate victims of intentional and unintentional harms in many contexts,” Reiss wrote last week. Victims of preventable diseases “deserve protection, too.”