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Monday, August 26, 2013

Vaccine Refusers: A Shot at Liability?

       The pastor at Eagle Mountain Church, a mega-church located in Tarrant County, Texas, has apparently been preaching an anti-vaccine message based on worries that vaccines cause autism in young children, a theory that has been discredited by the scientific community. It appears that a large contingency of the church members chose not to vaccinate their children, and now Eagle Mountain Church is the epicenter of the latest measles outbreak in the United States. A man contracted  measles in Indonesia while on a mission trip and visited the  Eagle Mountain Church shortly thereafter before he knew he was exposed to the disease. As of today, there are fifteen cases of measles in the county: nine children and six adults ranging in age from 4 months old to 44 years old. All of these cases can be traced to the church visitor, according to the local public health department. At least twelve of those who contracted measles were not fully immunized against the disease, while the other patients have no record of being vaccinated. Eagle Mountain Church has now quickly set up a measles vaccination campaign in the hopes of stopping the spread of the disease in its congregation, albeit reluctantly (the pastor still expresses concerns about vaccination in press interviews about the outbreak.)  Despite the pastor’s misgivings, measles vaccines are around 95 percent effective when given to children. Although this means that the disease still poses a public health risk, public health officials rely on others to get vaccinated to reduce the likelihood of outbreaks. That is how herd immunity works.

            To encourage this, Texas requires all children to be vaccinated against measles when they enter kindergarten in private or public schools.  According to the state health department, 98 percent of Texas students comply. But Texas is one of many states that allows conscience exemptions for vaccinations. Chapter §97.62 of the Texas Administrative Code requires a signed affidavit by the child's parent or legal guardian, stating that the child's parent or legal guardian declines vaccinations for reasons of conscience, in order to take advantage of the exemption. The regulation notes that a child, who has not received the required immunizations for reasons of conscience, “may be excluded from school in times of emergency or epidemic declared by the commissioner of public health.” If this outbreak spreads, the 1% of Texas students whose parents signed the affidavit may be required to stay home from school.

         So how many of the children infected with measles in the Eagle Mountain Church outbreak had filed a personal exemption in accordance to state law? None of them. They did not need to, as they are all home-schooled. I live in an area in Central Florida where many of my neighbors home school their children. Although they are “home schooled,” they travel outside the home for organized physical education, sports, and another extracurricular activities with other home schooled and non-home schooled children several days a week. It strikes me that the vaccination rules should apply to home schooled children for many reasons.  First, the rationale for including private and public school students would apply to home schooled children, as they are often around other children. More importantly, I believe this would serve as a deterrent to conscience objections (some people may dislike vaccines, but they may dislike having to go through the steps to get the affadavit form and fill it out --even more.) Another purpose would be for epidemiological reasons. Depending upon the state or area of the state, a large population of children may be home schooled and if they are not immunized, local public health officials should know this for record keeping and tracking purposes.                           

           As a person with a public health background, these outbreaks are maddening. Vaccines are safer than ever, and they work. The link between vaccines and autism has been discredited, and Dr. Andrew Wakefield, the researcher who first claimed a link between autism and the Measles Mumps and Rubella (“MMR” vaccine), has had his medical license revoked and his article retracted, but the public skepticism about vaccines remains. This is despite the mountain of peer reviewed scientific evidence that does not find any link between autism and vaccines. All over the United States, we are seeing outbreaks of measles similar to the Eagle Mountain Church outbreak due to vaccine refusers. For the most part, parents who refuse to vaccinate their children for non-religious reasons are usually doing so in the belief (however mistaken) that they are protecting their children. However, by doing so, they put others at risk.

             Recently, this anger at vaccine refusers seems to have reached a boiling point, with some recommending that conscience objectors of vaccines face tort or criminal liability if their lack of vaccination causes others in the community to become infected. Art Caplan and his co-authors published a thought experiment in the Journal of Law, Medicine & Ethics, where they worked through a hypothetical case quite similar to the Eagle Mountain Church example. The article outlines a potential tort theory and criminal theory for vaccine refusers to be held liable to those who may contract the disease from their non-vaccinated child(ren). Under the torts analysis, the liability would be based on negligence. In the Eagle Mountain Church example, could there be any tort liability against the non-vaccinated individuals if they spread the disease to infants who are too young to be vaccinated or to vaccinated individuals? Here, the individuals infected did not rely on any statutory religious or conscience exemption.  That makes the case a bit easier to argue that those who refuse vaccinations are acting unreasonably and thus should be held liable for any harm they cause. Some have analyzed these cases as examples of nonfeasance, rather than misfeasance. I do not see this as a case of people refusing to act, but rather as acting to create an unreasonable risk to others. One of the difficult parts of the negligence analysis here would be causation—both whether that particular individual’s failure to vaccinate actually caused the disease that the plainfiff was suffering from and whether this was foreseeable. But these are not insurmountable. The CDC has a database to identify which strain of measles an individual has contracted.  Such data would help create epidemiological evidence linking the plaintiff's illness to the non-vaccinated defendant's illness.   But I am not sure such cases would satisfy actual causation. That is, but for the defendant not being vaccinated, would the plaintiff have contracted the disease? In the case of a massive outbreak, the answer is difficult. The plaintiff may have been exposed to several people who were capable of spreading measles. Also, since it is possible for vaccinated individuals to contract the disease and spread it (although very very rarely), it is possible that the plaintiff could have been infected even if the individual had been vaccinated. This would make the causation question potentially difficult to prove.

      There are also other legal theories to try to discourage vaccine refusal. In a 1992 New York case, In re Christine M., a father refused to vaccinate his three-year-old daughter against measles despite a New York law requiring measles vaccination. In re Christine M., 595 N.Y.S.2d 606, 618 (N.Y. Fam. Ct. 1992). There was a serious outbreak of measles at the time of the case, which placed unvaccinated children at high risk for contracting the disease. The New York Family Court found that this behavior rose to the level of neglect under New York’s Family Court Act. Of course, this was before Wakefield’s discredited study and the powerful anti-vaccine movement so it is unclear whether such a ruling would occur today, but the case is a promising example of the power of family law to perhaps help in public health efforts.

       That said, even more than legal interventions, we need to regain the trust of the public in vaccines and in public health in general. Legal efforts to punish vaccine refusers may actually result in a backlash and even more of a conspiratorial, nanny state narrative. Not all vaccines are created equal. The MMR vaccine is very different than Hepatitis B or HPV vaccines, and parents should be leveled with about that. If parents wish to apply for a conscience objection, they should be educated by medical or public health professionals at the time of the request about the risks of not getting their children vaccinated. Parents may not know how their decisions could put their own child or other people at risk.  Also, sometimes with good intentions, public health tends to oversell and overhype.  Vaccines are good, and much safer than the alternative for most individuals, but they are not perfect.  Honestly and clearly acknowledging and disclosing risks of vaccines also helps public health regain credibility. These steps may go a long way in helping earn that trust back.

Posted by Seema Mohapatra on August 26, 2013 at 02:56 AM | Permalink


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I agree that the decline in vaccination rates is a serious problem, and for exemptions, like Dr. Silverman's idea, under which parents will have to undergo extensive education before obtaining an exemption: http://www.ncbi.nlm.nih.gov/pubmed/12856460.
Note, by the way, that some states do apply immunization requirements to home schooling, e.g. North Carolina (http://www.sog.unc.edu/sites/www.sog.unc.edu/files/ImmunizationPPT0907.pdf) and Virginia: http://vahomeschoolers.org/guide/vaccinations/. I'd agree it's a good idea to apply that generally.
Some comments about the torts option:

A. The causation question will depend on the case, and you're right that if there is a massive outbreak it would be tricky. On the other hand, in a case like the San Diego 2008 outbreak, it could be relatively easy. And as you point out, vaccines are not perfect - but with a vaccine like MMR, where two doses offer protection to about 99% of those vaccinated, it would be pretty easy to meet the "more likely than not" standard. After all, no precaution is fool-proof - they can reduce the harm.
B. For tort liability you'd also have to overcome the usual rule that there's no duty to act and make a case for an exemption - possible, but not obvious.

Posted by: Dorit Reiss | Aug 26, 2013 12:26:52 PM

How about laws requiring parents to sit through a briefing on the consequences of each and every disease for which they refuse vaccinations?

We could also have strict and excessive regulations on any building which is run by an organization whose leaders or employees counsel against vaccinations. For example, this church building could be required to have a self-contained and filtered air supply, with airlocks and decontamination rooms, and perhaps internal barriers. It's only cost a million or so, and think of the children!

Posted by: Barry | Aug 26, 2013 9:45:05 AM

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