« interesting Class Participation Idea | Main | Pine Tar at 35 »

Tuesday, July 24, 2018

Liability of Doctors Accepting Unvaccinated Patients

Over the past few years, discussions on whether a doctor can, or should, be liable if she accepts unvaccinated patients and they infect other patients with a preventable disease have arisen repeatedly. This is not a theoretical possibility. For example, in 2008, in San Diego, an unvaccinated child returning from Switzerland with measles infected several children, among them four patients in his pediatrician’s office, three of them infants too young to vaccinate. One of those infants had to be hospitalized.

I have heard arguments that doctors who accept unvaccinated patient should be liable in torts if this eminently foreseeable result materializes. I disagree, and will explain why.

Behind the question of tort liability is the question of whether it is reasonable for doctors to accept unvaccinated patients to their practice (I’m intentionally glossing over professional liability or not, to keep this short, but happy to address that in the comments). Unvaccinated patients are at substantially higher riskthan vaccinated ones to contract and transmit a preventable disease. But the question is not simple, and is a matter of intense debatewithin the profession.

On one hand, accepting unvaccinated patients creates a risk that they will bring in an infectious disease and infect others. In one tragic example in Germany, two babies infected in that scenario died from a fatal measles complicationslowly, in agony, years later. In addition, doctors point out that if patients do not trust doctors enough to accept vaccines, the doctor/patient relationship is already flawed. While blind trust is likely neither necessary nor desirable, rejecting something as basic as vaccines implies very deep mistrust that can interfere with good treatment. Finally, if the goal is to provide the best medical care to the child, not vaccinating means the doctor is failing her duty – and if the threat of dismissal from the doctor’s office pressures parents into vaccinating, goes the argument, the child is better served.

On the other hand, rejecting unvaccinated patients can mean – depending on the area - leaving unvaccinated children without medical care. Not only is this punishing them for their parents’ error, these children may need medical care more than others. It also means giving up on the chance to change those parents’ minds – and risking that they may end up in practices that are friendly to non-vaccinating, where the higher rate of unprotected children would increase the risk of outbreaks.

In response to the risk of infection in the waiting room, some doctors point out that it exists from diseases that are not vaccine preventable, too, and refusing unvaccinated patient would not eliminate it (though it will reduce the risk from preventable diseases). A better solution to the risk is separating out sick and well waiting rooms, they argue.

For years, the American Academy of Pediatrics opposed dismissing unvaccinated patients. But in August 2016 it changed course, giving what some perceive as limited approvalto pediatricians who choose to dismiss non-vaccinating patients if it’s done as a last resort.

What about tort liability? The question is whether it is malpractice – or general negligence – to have unvaccinated patients. In both case, I think the answer should be no. There are simply too many good arguments supporting seeing unvaccinated patients to say that seeing them is unreasonable. There are very valid arguments for not seeing them, and I do not think there is a reasonable claim that a doctor that refuses such patients is acting unethically or should be subject to liability, either. But there are also valid reasons to keep accepting unvaccinated patients.  

The position of the professional association also supports both views. This is a case where there are, in fact, two schools in the profession, both have merit, and neither position is unreasonable. In some circumstances, doctors accepting unvaccinated patients may be negligent in other ways. For example, maybe knowing a patient is unvaccinated is a reason to keep such patients, when ill, especially away from others, or in some circumstances see them in isolation. But just the decision to accept unvaccinated patients should not, in itself, lead to liability.

I do think there is a reasonable case for liability in other circumstances. For example, there are strong grounds to hold doctors who recommend foregoing vaccinating without good medical reasons liable to their patients, if patients get a preventable disease, and to third parties they may infect. There are also good grounds to hold parents who do not vaccinate liable to third parties (or their children) in the right circumstances – and the usual rule that there’s no duty to act should not be a barrier.

But for the reasons above, I do not think accepting non-vaccinating patients should, by itself, lead to liability.

I would be curious to hear other views/positions.

Posted by Dorit Reiss on July 24, 2018 at 09:01 AM in Torts | Permalink

Comments

A nearby practice has a separate entrance where they will take people who are believed to have a serious transmittable condition, but the practice decided it is too costly and inefficient to maintain a separate waiting room for sick people, or potentially sick people.

Sick people go to the doctor. Flu, pneumonia, meningitis, all kinds of things. Should we have a separate waiting room for the great many people who don't get flu shots, whether or not they have flu symptoms? As Biff says, it is fairly selective to focus on unvaccinated children like they are modern day lepers. We abhor risk in our society and unfortunate as any death or illness is, measles have been at a very low rate for 20+ years. Keeping that rate low is good and worthwhile but the call to sue doctors and segregate the unvaccinated are disproportionate solutions.

Posted by: CrispyBacon | Jul 25, 2018 2:49:14 PM

Ellen Wertheimer ,

You may read hereby further , about opinions like yours ( liability of parents ) here :

http://www.vaxchoicevt.com/wp-content/uploads/2012/04/diekema-sue-non-vaccinators.pdf

Posted by: El roam | Jul 25, 2018 2:40:33 PM

I am inclined to agree that doctors should not be liable for having unvaccinated children as patients. It is, however, tempting to ask that unvaccinated patients perhaps have a separate waiting room to minimize the risk of exposing others who may either be too young to be vaccinated or have a medical reason for not being so.

The real parties responsible for unvaccinated children are, of course, the parent(s). I see no reason why parents who inflict this risk on others should not be sued for the foreseeable consequences of their actions.

Posted by: Ellen Wertheimer | Jul 25, 2018 1:47:29 PM

To show that Bacon is right, would anyone say that a doctor may not have as a patient someone with a legitimate medical reason not to be vaccinated? The risk to others is the same no matter why a patient is not vaccinated, the only difference is that we approve of one decision and so don't want to punish them and we don't approve of the other decision.

Posted by: Biff | Jul 25, 2018 1:26:45 PM

Salem Al-Damluji is very much on point. The only thing I don't agree entirely with is that these efforts are motivated by a lack of "guts to go after the wrongdoers."

The dynamics at work have infected our society at large. It is the idea that individuals are doing something bad and so responsibility should fall on the shoulders of others in order to force compliance. It is a deliberate fundamental shift from individual responsibility to community responsibility.

As explained by Salem Al-Damluji, I think the liability of doctors for accepting patients should be seen as absurd. Recognizing the strain of thought at work explains how this argument nonetheless gains traction.

Our politics are rife with this stuff. There is a tribal quality to it. It is the shaming and excluding of others and punishment of others who don't act similarly. If the responsibility can be placed on a business owner for providing service to a disliked public official, then that is what we'll do, to get at the public official.

In the vaccination context there is a quantifiable harm and threat of legal repercussions, but it is very much the same strain of thought at work.

As for the idea that we simply don't have the guts to go after non-vaccinating parents, there are honest differences of opinion and concerns for liberty mixed in with gutlessness. But whatever the reasons for legislative inaction, the space is filled by the idea of community responsibility, enforced by any means available.

Second point, in response to Dorit Reiss: I don't think it is much a matter of distrust between a doctor and a patient but a distrust of doctors generally. I think this is what you mean, but it is an important distinction.

The same kind of tribalism and break down of individual responsibility and relationship is at work. People on the other side of an issue are seen as witless conspirators in a great evil. The view is that your particular doctor is not acting on an independent and informed basis but is part of a system. The system is rigged against those brave doctors - the argument goes - who would be suppressed and forced out of medicine if they spoke up.

The extent to which this is all facilitated by the internet is interesting but fruitless to dwell on. Are we are in a death spiral where disagreement and distrust breeds more enforced community responsibility which breeds more distrust? I think we might be.

If we place responsibility on the individual and we relate as individuals, rather than as pawns in a game, I think that's the way out. But as is often said in the political context, we're not willing to talk to each other, not willing to step outside of that cycle, lest the other side wins.

Posted by: CrispyBacon | Jul 25, 2018 11:40:46 AM

Dorit , you may find some inspiration ( at least ) in that ruling here ( liability of doctors , psychiatrist ) here :

http://www.floridasupremecourt.org/decisions/2016/sc14-898.pdf

And here by the way , recent scandal concerning vaccinations in China , here :

https://edition.cnn.com/2018/07/24/asia/china-vaccine-scandal-intl/index.html

Posted by: El roam | Jul 24, 2018 11:52:27 AM

Interesting post . But there is basic discretion or basic legal basis that should be considered here , while dealing philosophically , with liability in tort :

First we deal with predictability and probability . One must asses first , what is the standard ( if at all ) reigning and generally accepted in that particular domain :

Suppose a bank . If the bank , wouldn't take precaution measures , for preventing digital thefts ( like anti virus programs , or " firewall " or whatsoever ) Then , it would be held accountable for tort or negligence , in case of breach of data and so forth… why ?? Because of deviation from standard , and clear predictability discretion , that such negligence , shall result in damage .

The same should go here :

One may claim , that the standard is to be vaccinated , so , the patient is liable not doctors . On the other hand , if statistics show that the probability is low , for an unvaccinated person , to infect others , then , liability is reversed one may claim ( because , doctors typically , bears many risks , even in complete safety and standardized environment , anyway so ) .

So , as an expert in that domain , you should tell us Dorit , and bring basic statistics in this regard.

Best thing, is always to have clear and conclusive legislation . So , being aware to norms , legal norms , an action ( by insurance companies for example
) can be taken , and making it more stable and safe and organized .
Thanks

Posted by: El roam | Jul 24, 2018 11:35:33 AM

I don't think there's even a colourable argument. Accepting unvaccinated patients can't be, in itself, a breach of the duty of care. It has to be something like exposing other patients to a higher risk of infection. But that's equally true of the anti-vacc nuts and those unvaccinated for good medical reasons. Indeed, a far bigger risk than the unvaccinated (who just might have the illness) are those actually suffering from a communicable disease. Strange to argue that doctors should allow sick people to be patients!

And indeed what's special about doctors surgeries? Is a supermarket negligent for admitting unvaccinated shoppers?

To the extent this draws attention to iatrogenic illness, that's a good thing. My GP surgery has signs up saying don't come here if you have flu. But the unvaccinated are just not a large part of that. You are hundreds of times more likely to get MRSA - or just a common cold - from a hospital or doctors surgery than anything caused by lack of vaccination.

Just like your post on banning children from the education system, this is people trying to abuse the law to pursue innocent people, because they don't have the guts to go after the wrongdoers. And no doubt a healthy amount of rent-seeking thrown in: can't hurt that this is a new opportunity for class action lawyers to target those juicy liability insurance layouts. But the people who are exposing their fellow citizens to an unwarranted risk if infection are not the doctors, but the individuals (or their parents) who wilfully refuse to get vaccinated.

Posted by: Salem Al-Damluji | Jul 24, 2018 10:49:15 AM

Post a comment