Guest Post: No liability for failure to vaccinate? The case has not been made: A Response to Mary Holland

As of Friday, June 28, this post is closed to further comments. We want to thank the many readers who have engaged in a vigorous and civil discussion on the recent posts to the Bill of Health that engage questions related to the debate over vaccines. In general, we do not moderate discussions on the site. However, due to an increasing number of comments that violate our policies regarding abusive and defamatory language and the sharing of personal information, we are closing these posts to comment.

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 aloneChildren 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 severeand 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, 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.

6 thoughts on “Guest Post: No liability for failure to vaccinate? The case has not been made: A Response to Mary Holland

  1. You fail to acknowledge that vaccines themselves spread disease. If you want to compel something, let’s compel people to eat real food and develop healthy immune systems – AND forbid Monsanto from putting pesticides and herbicides into the DNA of the food that we eat. The endless compelling of individuals by the Federal govt. is a clear violation of Constitutional principles. One does not have to have a religious reason to be opposed to the overreach of too many forced vaccinations that have the end result of overstimulating the immune system and creating autoimmune and other disorders. Take it from someone whose dog developed seizures after getting a vaccine at the age of 2 – and now we are faced with a lifetime of seizures and their consequences, seizure meds that are dangerous and cause their own problems (eg, liver failure), the expense of twice-yearly blood tests ($225 each), and further blood tests if we change medications – which happens frequently, as anyone who has dealt with this will tell you. Never mind that I cannot give him any commercial feed b/c his overstimulated, too-sensitive immune system can kick him into a seizure if it encounters a chemical or substance it doesn’t like – and not everything that is in the food is required to be on the label, so one can’t know all that is in the food. All this means is that now I cook for the family and for the family dog. Oh, I could have him put down, I suppose; but he’s only 4. And I have too much respect for life to do that. I also have too much respect for freedom and individual choice to go along with your argument that somehow we must compel people to vaccinate a child and incur the risk of an autoimmune or other disorder that will harm that child for life. Never mind the continued spread of disease by the vaccines themselves. I suggest you educate yourself by first learning the difference between a live-virus and a killed-virus vaccine; not all vaccines are made the same way. Furthermore, until there is better oversight of the vaccine industry – currently there is very little, something that I, as a medical writer involved in the pharmaceutical industry, am far too aware of – you cannot ethically compel people to participate in the process. The manufacturers MUST have accountability, and those who are compelled MUST have recourse in the event of an error by the manufacturers. In the absence of those two things – which is the current state of affairs – compelling participation in the process amounts to an immoral and unethical act on the part of the State.

    • “You fail to acknowledge that vaccines themselves spread disease.”

      Citation needed. And by that I mean a PubMed indexed study showing that a vaccine on the present American schedule for human children causes disease at least as much as the actual wild microbe to someone contacting the vaccinated person.

      This does NOT mean the transfer of smallpox (vaccinia) from soldier who to someone else for failing to follow instructions. Nor does it mean vaccine strain polio from the OPV transmission in India. Because active military personnel are not pediatric patients (despite what their parents may think), and places which still use OPV are not in the USA.

      (apologies for asking this a third time, if you guys can just approve the first comment, that is cool)

      I ask as a parent whose child had seizures from an actual disease before the vaccine was available. The result is that he is permanently disabled, and I bet that we spent more on hospitalization, therapies, IEP meetings and future adult legal trust filings than what you spent on your dog. And, no… putting our child “down” was never an option. That is repugnant.

      So, really, do provide the PubMed indexed study showing any vaccine on the American pediatric schedule causes more seizures than the actual illnesses. Because if you are going to make a big deal, you need to have that evidence.

    • Mr. Sterling: Perhaps you didn’t thoroughly read what this debate is about. It is NOT about your rant against Monsanto, nor is it about your anecdotal study (n=1) of your dog’s reaction to a vaccine.

      “Never mind the continued spread of disease by the vaccines themselves. I suggest you educate yourself by first learning the difference between a live-virus and a killed-virus vaccine; not all vaccines are made the same way.”

      I know the difference between an attenuated virus and a killed virus vaccine. I also know how the hepatitis B and HPV vaccines are manufactured using rDNA technology. Do you? Do you know how vaccines that protect against bacterial illnesses such as tetanus, diphtheria, pertussis, S. pneumoniae, N. meningitidis and invasive H. influenzaie disease?

      If you have any PubMed citations to back up your other statements, please provide them.

      -lilady R.N. BSc-Nursing, Public Health Nurse Clinician-Epidemiologist (Retired)

  2. KWSterling: “You fail to acknowledge that vaccines themselves spread disease.”

    Citation needed. Please provide a PubMed indexed study showing that a vaccine on the present American pediatric schedule spreads disease. Because according to my memory the only ones that cause full blown illness were smallpox (not given to children) and OPV (no longer used).

    My kid developed seizures from a disease before there was a vaccine. He is permanently disabled. I contend the hospitalization, neurodevelopmental therapies, hours spent in IEP meetings and future care as an adult will cost more than your dog. Also, society frowns upon putting down 24 year old children, especially since even though he is disabled he is a happy and still growing human being. Who do I sue?

    Better yet, provide the PubMed indexed study that shows any vaccine on the present American pediatric schedule causes more seizures than the disease or diseases it is intended for.

  3. KWSterling: “You fail to acknowledge that vaccines themselves spread disease.”

    Please provide the PubMed indexed study showing this commonly occurs with a vaccine on the present American schedule for human children. The only ones I know that cause severe disease are smallpox (given to active military only, and those are all over eighteen years old), and the old oral polio vaccine that is no longer used due to the work of John Salamone.

    My now twenty four year old son had seizures from a now vaccine preventable disease, and is permanently disabled. I contend that the hospital care, neurodevelopmental therapies, time a IEP meetings and setting up a trust for him will cost us more than your dog. We also would never try to “put down” our own child (it is repugnant, and he is still maturing, he may actually get a job someday).

    So you need to tell me all about vaccines and seizures, and compare them to the very real data on diseases and seizures. So please provide the PubMed indexed studies from reputable researchers that show a vaccine on the present American pediatric schedule causes more seizures than the disease. One example is that the MMR vaccine causes seizures in about one in over a million doses, yet measles causes about one in ten febrile seizures, including one in a thousand cases of encephalitis. So, really, do prove with real data any human pediatric vaccine is more dangerous than the disease.

    (I apologize if this is repeat post, but the first one did not show up)

  4. KWSterling says, ” Furthermore, until there is better oversight of the vaccine industry – currently there is very little, something that I, as a medical writer involved in the pharmaceutical industry, am far too aware of – you cannot ethically compel people to participate in the process”

    This statement indicates that you are neither a medical writer, nor are you involved in the pharmaceutical industry, as it is so fallacious it defies reason.

    There is tremendous oversight of the ‘vaccine industry’ as it is part of the pharmaceutical industry. They are not separate entities. They are strictly regulated and inspected. If you were actually in the pharmaceutical industry, you would know this.

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