Lawyers quarrel over tort liability after the Disneyland measles outbreak
Sometime in December 2014, a visitor infected with measles visited Disneyland in Anaheim, California. In a month, the airborne and highly contagious illness spread to 91 confirmed cases in California.
Of those, 58 were linked to visits to Disneyland or contact with those who went to the theme park. Other states reported cases as well. A Los Angeles Times editorial blamed the outbreak on “anti-science stubbornness.”
Thanks to widespread vaccination, measles was considered eliminated, though not eradicated, in 2000. But a small number of parents from across the political and socioeconomic spectrum have chosen not to vaccinate their children. These families rely on what’s called “herd immunity,” meaning their child stands scant risk of catching what can be a fatal disease because the majority of the public is vaccinated. And until recently, that strategy worked. Now, it’s being scrutinized as creating a danger subject to liability.
Public health experts surmise this elusive “patient zero” was from out of the country. Well before the outbreak, Dorit Rubinstein Reiss, a law professor at the University of California’s Hastings College of the Law in San Francisco, proposed the notion of finding parents whose unvaccinated children spread the preventable disease negligent under tort law.
“No one would go to jail, or be forced to vaccinate, but the consequences of that choice would fall to them,” Reiss wrote in a 2013 article (PDF) in the Cornell Journal of Law and Public Policy.
“Someone who causes harm in defiance of the consensus of science, health and government authorities should bear those costs,” she adds. “It’s not fair to force others to pay for your own unreasonable choices.”
Reiss, who teaches torts, believes the threat of such lawsuits might give parents pause. It also might cause more children to be vaccinated, improving herd immunity—which some children, such as those with immunosuppression, rely on.
The notion threw fuel on an already blistering fire between “vaxxers” and “anti-vaxxers,” who had been battling it out in the press and the blogosphere. Those who choose not to vaccinate their children cite such issues as religious exemptions from invasive procedures and the minute but real danger that a vaccine could harm their child.
At a contentious hearing in April, California lawmakers approved a bill eliminating the state’s “personal belief exemption,” which would make California’s vaccine mandate that all children be immunized before entering school the toughest in the nation. The measure faces more hearings before proceeding to the state Senate. [On June 25, the Assembly approved the bill.]
Efforts to reject government intervention in individual decisions that affect public health are not new. In 1905, in Jacobson v. Massachusetts, the U.S. Supreme Court found that while parents could not be physically forced to vaccinate their children, the state could keep unvaccinated children out of school. The court took the view that the freedom of the individual must sometimes be subordinated to the common welfare and is subject to the police power of the state.
“Jacobson was a good decision for 1905,” says vaccine choice advocate Mary Holland, a New York University research scholar who has written several law review articles on vaccination. “It held there has to be a public health necessity, and the reasonable means to meet the threat must be proportionate. In essence it created the medication exemption. But the language in the decision does not support the many routine, preventive childhood vaccine mandates we have today.”
And, she notes, at the end of the Jacobson decision, the court acknowledged that for certain individuals, the requirement of vaccination would be cruel and inhumane and therefore an overreach of government power.
“I don’t think the pro-vaccine people are reading Jacobson correctly,” she says.
States adopted religious exemptions to supplement the medical exemption that Jacobson requires, Holland says. “Forty-eight states have religious exemptions to ensure that those who have strongly held religious convictions against vaccines are not required to take them or give them to their children against their conscience,” she says.
Alan Phillips, an Asheville, North Carolina, vaccine rights attorney who counsels individuals regarding exemptions, says the use of tort law to hold nonvaccinating parents liable for the spread of a disease would be in conflict with superseding constitutional rights laid out in the First Amendment about free exercise of religion, as well as parents’ constitutional right to parent their children under the 14th Amendment’s due process clause.
“Similarly, with our standard of innocent until proven guilty, parents are presumed to make decisions in children’s best interest, unless there is evidence to the contrary. This proposed law would be declaring all those parents unfit by law.”
PAYOUTS AND POSSIBILITIES
According to the Health Resources and Services Administration, in the 25-plus years the National Vaccine Injury Compensation Program has existed, it has paid out $2.9 billion to individuals and some $200 million in attorney fees.
Holland says the program, which eliminates liability for vaccine manufacturers and health care providers, is proof that the dangers of vaccines are real. “The vaccine question is a hot-button cultural issue, like abortion, the death penalty, gun control or same-sex marriage,” she says.
Reiss counters that abortion and other issues don’t pose a scientific question, but one of morality. “Here the science is pretty clear,” she says, that risks from vaccinating are much less than not vaccinating. “These individuals are endangering their child and the community.”
Bellevue, Washington, attorney June Campbell says the issue is more analogous to someone with a sexually transmitted infection, such as HIV, who knows they are infected, fails to share the fact and infects partners.
“The concept is simple,” says Campbell, who represented a man accused of knowingly transmitting genital herpes. “There is a duty, a breach of that duty, proximate cause and damages.”
Campbell won her case on a summary judgment motion, as the plaintiff was not able to prove proximate cause, which she believes would make a measles case difficult to prove.
“I think it would be very, very difficult for anyone to prevail on some type of theory that some kid gave another kid measles,” she says. “Unlike HIV, measles is easily transmitted through the air. If someone coughs or sneezes and leaves the room, someone two hours later could be exposed. Additionally, the vaccine is not 100 percent effective. I don’t see a duty on the part of a parent who didn’t even know their kid has measles and was potentially transmitting it to others.”
Liability proponents say that is an issue for a judge or jury, and one that faces other types of negligence cases. Robert L. Schwartz, professor emeritus at the University of New Mexico School of Law, has been working with Reiss on the liability issue. He says the risk to an unvaccinated child of getting measles is much higher than the chance the vaccine will cause injuries. Furthermore, it comes down to an issue of fundamental fairness.
“Sure, the best position of all to be in is to not vaccinate your child and rely on the fact that everyone else in society is vaccinated,” he says. “We see a fair number of well-educated, well-off parents who do not want to put their precious child at risk if everyone else will take the risk for them. It’s not a fair trade-off.”
The fight is rhetorical right now. The Centers for Disease Control and Prevention have not identified patient zero. “People have strong views, but dialogue and education are critically important,” Holland says.
This article originally appeared in the July 2015 issue of the ABA Journal with this headline: “A Vaxxing Dilemma: Lawyers quarrel over tort liability after the measles outbreak.”
Correction
A photo of Main Street at Disney World in Florida, instead of Disneyland in California, was mistakenly featured with the article “A Vaxxing Dilemma” in print and initial online editions of the July issue of the ABA Journal.The Journal regrets the error.
