Non-Vaccination: A Litigation Outbreak

John MacFarlane

By Ashton Hyde & John Macfarlane

 

This past year, the United States experienced a multistate measles outbreak raising the question: can parents be held liable for electing not to vaccinate their children? Vaccination is a widely debated issue in the United States with more and more parents choosing not to vaccinate their children. Most vaccination series cannot be completed until a child is nearly 2 years old and some children can never be vaccinated due to underlying medical conditions. Without a vaccination, an individual remains susceptible to vaccinepreventable diseases. Children eligible for vaccination that have opted out of vaccination have the potential to spread the disease to individuals who cannot be vaccinated.

Under a general negligence theory, parents could be held liable for electing not to vaccinate their children. Negligence is the failure to exercise the care that a reasonably prudent person would exercise in like circumstances. To prevail on a negligence claim, a plaintiff must show (1) the defendant owed the plaintiff a duty, (2) the defendant breached that duty, and (3) the defendant’s breach caused the plaintiff injury.

Duty
Holding individuals liable for the careless transmission of disease is not a new concept to tort law. Much like an adult has a duty to protect others from the spread of sexually transmitted and other communicable diseases, it could be argued that parents have a duty to protect others from the spread of vaccine-preventable diseases. Due to the effectiveness of vaccinations and the low risk involved, it appears that a reasonably prudent parent would vaccinate their children, absent legitimate medical contraindications.

At a minimum, a reasonable person would know that vaccines protect against certain life threatening diseases that can spread from person to person. A reasonable person would also know that age guidelines and legitimate medical contraindications preclude some individuals from being vaccinated and, if an individual is not vaccinated, they are not protected against vaccine-preventable diseases. Finally, a reasonable person should understand that electing not to vaccinate their child places their child at risk of contracting a vaccinepreventable disease and spreading the disease to others. Ultimately, it could be argued that the nonvaccinating parents failed to exercise reasonable care and pursued a course of conduct that put all non-vaccinated individuals at risk.

Breach
With a duty to prevent the spread of communicable diseases through vaccination, any parent who elects not to vaccinate their child, absent a legitimate medical contraindication, breaches their duty. While there are several exemptions to compulsory vaccinations in schools, only a legitimate medical contraindication should excuse a parent from their duty to vaccinate. The vast majority of states provide vaccination exemptions based upon religious and philosophical grounds. However, it is unclear what qualifies as sufficient religious or philosophical grounds. Further, such grounds are insufficient to excuse a person from exercising reasonable care toward others. If a person could avoid liability because their actions were due to religious or philosophical beliefs, recovery on any negligence claim would be severely limited.

Causation
The largest obstacle a plaintiff will likely face is showing that a defendant’s conduct was the actual and proximate cause of the plaintiff’s injury. In the vaccination context, the injury would occur when an individual, who cannot be vaccinated because of age or a legitimate medical condition, contracts a vaccine preventable disease from a child whose parents should have vaccinated their child but elected not to do so. The difficulty will lie in finding the unvaccinated defendant child that spread the disease to the plaintiff. If the plaintiff contracts the disease and the defendant child is the only non-vaccinated child (by choice), it is more likely the plaintiff will be able to show causation. However, this clear cut case is somewhat unlikely. In schools and communities with high rates of parents choosing not to vaccinate their children, it is more likely that there will be multiple victim children and multiple infected, non-vaccinated defendant children.

Assuming the plaintiff is able to trace actual cause back to a defendant, a plaintiff must also show that the defendant’s conduct brought about the injury in a foreseeable manner. However, given the success rate of vaccinations, it would likely be found foreseeable that, if a portion of the community voluntarily elects not to vaccinate their children, vaccination-preventable diseases will spread to individuals who are unable to be vaccinated due to age or legitimate medical restrictions.

Damages
After showing duty, breach and causation, a plaintiff must establish damages. However, it should be relatively easy to establish damages resulting from the contraction of a vaccination-preventable disease. At a minimum, the infected individual will likely incur substantial medical expenses and endure significant pain and suffering. Given the seriousness of vaccine-preventable diseases, the infected individual may even die. The contraction of the disease will also likely result in corresponding losses including lost wages and lost household services.

A negligence claim appears to be a viable avenue to recover for injuries resulting from the contraction of a vaccine-preventable disease. Although establishing causation could be difficult, a court would likely find that there is a duty to vaccinate. By electing not to vaccinate, parents are not only taking a risk for their own children, but for individuals that cannot be vaccinated. When an individual contracts a vaccine-preventable disease from a child whose parents elected not to vaccinate, the victim should be entitled to redress. While parents may have a choice in vaccinating their children, they likely cannot expose others to vaccine-preventable diseases without facing recourse.


Ashton J. Hyde of Fabian Clendenin practices in the area of commercial litigation with a focus on bankruptcy as well as malpractice and tort litigation. He represents receivers, trustees, debtors and creditors in bankruptcy and other insolvency matters. John Macfarlane of Fabian Clendenin has experience working as part of the firm’s team on medical malpractice and plaintiff’s personal injury cases. His duties have included handling pretrial hearings and working with expert witnesses. He also handles cases in the areas of debt collection and bankruptcy. Ashton can be contacted at ahyde@fabianlaw.com. John can be contacted at jmacfarlane@fabianlaw.com. For more information, call (801) 531-8900.