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By Dorit Rubinstein Reiss, LLB, Ph.D.
Dorit Rubinstein Reiss (LLB, Ph.D.) is Professor of Law at UC Hastings College of the Law. She has published articles on regulation and administrative law and teaches tort law. She is also a member of the Parents Advisory Board of Voices for Vaccines and writes the blog Before Vaccines.
In a guest post on this blog, Mary Holland, JD, suggests that there are no grounds for imposing tort liability on parents for failure to vaccinate alone, even if it led to another person being infected. Holland’s post is courteous and matter-of-fact, and there are certainly arguments for that position, especially the argument that common law rarely imposes a duty to act. But Ms. Holland did not make that case.
A. Absence of a Common Law duty
Ms. Holland correctly identifies that courts are reluctant to impose a duty to act or rescue. Our legal system accords great weight to personal autonomy and therefore hesitates to require people to act. However, there are exceptions to this general approach, cases in which courts do impose a duty to act, so identifying that this is a duty-to-act situation is the start of a discussion, not the end of it. Duty is a legal determination by the court, not an objective, observable phenomenon independent of human will; “‘duty’ is not sacrosanct in itself, but only an expression of the sum total of those considerations of policy which lead the law to say that the particular plaintiff is entitled to protection,’ Dillon v. Legg, 68 Cal. 2d 728, 730 (Sup. Ct. 1968), quoting Prosser. Various courts have imposed a duty to act on a psychiatrist who knows of a threat a patient poses to others (Tarasoff v. Regents of the University of California, 17 Cal. 3d 425, 551 P.2d 334, 131 Cal. Rptr. 14 (Cal. 1976)); on a host to protect social guests from defects on the premises (Rowland v. Christian, 69 Cal. 2d 108 (1968)); on friends on a “joint venture” to render assistance when the friend is injured (Farwell v. Keaton, 396 Mich. 281, 240 N.W.2d 217 (1976)). Legislatures, too, may impose a duty to act.
There are several ways to analyze duty. Using the traditional Rowland v. Christian, 69 Cal. 2d 108 (1968) factors, we balance, among others, “the foreseeability of harm to the plaintiff, the degree of certainty that the plaintiff suffered injury, the closeness of the connection between the defendant’s conduct and the injury suffered, the moral blame attached to the defendant’s conduct, the policy of preventing future harm, the extent of the burden to the defendant and consequences to the community of imposing a duty to exercise care with resulting liability for breach, and the availability, cost, and prevalence of insurance for the risk involved.” Out of all these factors, Holland’s analysis focused solely on the burden to the defendant, ignoring all the other considerations.
Holland’s arguments that the duty creates too high a burden are that the duty violates religious freedom – addressed in part B – and that vaccines are unsafe. To show vaccines are unsafe Holland refers to Bruesewitz v. Wyeth, 562 U.S. __ (2011), saying the court found vaccines “unavoidably unsafe”; note, however, the majority in that case actually rejected the application of that term to vaccine injuries: “… there is no reason to believe that §300aa–22(b)(1) was invoking it. The comment creates a special category of ‘unavoidably unsafe products,’ while the statute refers to ‘side effects that were unavoidable.’” That the latter uses the adjective “unavoidable” and the former the adverb “unavoidably” does not establish that Congress had comment k (where the “unavoidably unsafe” language originates) in mind. “Unavoidable” is hardly a rarely used word. Nowhere does the majority say or suggest that vaccines carry a particularly high level of risk. The Court actually speaks positively of vaccines’ contribution to public health and sees them as “victims of their own success.”
Holland uses the National Vaccine Injury Compensation Program (NVICP) as evidence vaccines are unsafe; if that is our measure of vaccine safety, vaccines are extremely safe. In the 24 years of its operation, since 1989, the program awarded compensation for slightly less than 3300 cases. As calculated elsewhere, this is less than 0.003% of the vaccine administered. The fatalities - not injuries – from motor vehicle accidents (35,900) and accidents around the home (65,200) were much more numerous in 2009 alone. Children are safer being vaccinated than driven in a car or being home. And Holland completely ignores the benefits from vaccinating, i.e. protection of the defendant’s own children against preventable diseases. Like driving or being at home, vaccines are not completely risk free. But serious harms from vaccines are rare and they provide benefits to the person vaccinated.
There is an argument that imposing such a duty constitutes a burden on the defendant; however, it was not well supported here. An argument emphasizing personal autonomy and a forcing the defendants to subject their children to something they believe is dangerous would be stronger. The defendant’s autonomy and the defendant’s parental rights are both certainly being infringed here. I see the other factors as stronger than this infringement, but the torts system rejected duty to act even in cases where the infringement of autonomy was slight.
Addressing the other factors, the harm is probably foreseeable, since we know of cases where unvaccinated individuals spread disease to others (see also “Medical Care for Unvaccinated Children“), its extent can be severe, and the results to the community from imposing liability, whether the result would be that more people vaccinate and hence less outbreaks would occur or that there will be coverage of the plaintiff’s health costs, are positive. To me, this would suggest a pretty strong case for creating such a duty, that, to counter, needs powerful arguments in response.
Note also that this is no barrier against a claim based on negligent action; for example, that non-vaccinating parents actively exposed someone else’s newborn to an unvaccinated child or intentionally exposed an unvaccinated child to a disease such as chicken pox and then let that child expose others.
Of course, even if we find a duty, a plaintiff will still have to show the other elements of negligence; the arguments about vaccine safety can be raised, for example, to show breach, but why use them to completely bar this entire category of claims at the duty stage?
B. Freedom of Religion and tort liability
Holland suggests that the value of religious freedom in our system prevents holding parents liable if their opposition to vaccine is based on religious grounds. But the Supreme Court upheld the application of generally applicable criminal laws to religious minorities (Emp’t Div., Dep’t of Human Res. of Or. v. Smith, 494 U.S. 872, 874 (1990), for example) and there is no reason to believe that one’s religious beliefs protect one from liability if actions taken under these beliefs harm other. Religious freedom is not the freedom to harm others.
Constitutionally too, in the context of vaccines, the last pronouncement we have from the Supreme Court is that states may require vaccination on religious grounds even if this violates parental autonomy (Prince v. Massachusetts, 321 U.S. 158 (1944)). A state that chooses to offer a religious exemption is making a policy choice that it is free to rescind, since freedom of religion is not absolute. If the exemption can be rescinded in total, you cannot assume it is a complete barrier to tort liability.
Finally, the religion argument is in many cases suspect. There are small religious communities that sincerely oppose vaccination on religious grounds (and pay the price, as the orthodox community in New York recently did with an outbreak of measles, and as communities in the Netherlands paid with a rubella epidemic that led to two fetal deaths and 14 congenital infections and a measles outbreak, directly demonstrating the tension between parental religious freedom and the protection against disease of the child). directly demonstrating the tension between parental religious freedom and protecting the child against harm). There are no doubt individuals with sincere religious concerns as well, but I would like to see some evidence of how widespread that is, since research into reasons for not vaccinating emphasizes instead safety concerns and mistrust of government and doctors, not religion (e.g. “Vaccine Criticism on the World Wide Web“) – the same arguments Holland emphasized (see also, “School Vaccination Lawsuit“). Pockets of opposition aside, none of the major religions actually oppose vaccination (even the Vatican, while expressing concern about the use of cell lines to grow certain viruses used in vaccines, supports use of vaccines and even warns parents who do not vaccinate that they would be responsible before God if their child infects a pregnant mother with rubella and her fetus is harmed (see http://www.immunize.org/concerns/vaticandocument.htm, footnote 15).
C. Is it unfair to impose liability on parents who do not vaccinate while parents of vaccine-injured child cannot sue the manufacturer directly?
The focus of tort law is not retribution. A major goal is to make the victim whole. In this case, children who suffered a serious reaction to a vaccine can get compensation through the National Vaccine Injury Compensation Program. The NVICP is a reasonably plaintiff-friendly system, compared to a regular product liability suit: it applies a clear no-fault standard to design defects; for table injuries, plaintiff does not need to show causation; and it provides lawyer fees even if you lose, and an appeal to the federal courts. What is the mechanism to compensate parents whose child was infected by to an unvaccinated child? Why should they have to pay for the harm caused by a problematic choice by another family? Or would Holland suggest a no-fault mechanism there too, funded by a tax imposed on all families who do not vaccinate for reasons other than medical?
Holland also compares compensation here to the lack of compensation for outbreaks among vaccinated populations; but the torts system does not compensate every harm that happens in the world: it compensates harm caused by actors, usually with fault. If an accident happens because brakes fail, it will matter whether the brakes failed without anyone being at fault and without being defective – no liability – or if the brakes were defective (in which case you can sue the manufacturer) or the driver did not maintain them well (in which case you can sue the driver). An outbreak in a vaccinated population is not a matter of choice and fault. An infant infected with measles or whooping cough because another family chose not to vaccinate their child is another matter entirely.