Should The Choice Not To Vaccinate Be A Choice For Liability For Harm?

The recent outbreak of measles has brought the question of responsibility to vaccinate to the forefront of the issue. When parents choose not to vaccinate their child, should they be held liable if their child gets a preventable disease and passes it to others who get infected? There has been a strong response by leaders in the legal community who believe such liability is fair and makes sense.

Currently, all 50 states and U.S. territories, as well as the District of Columbia, have requirements for the MMR vaccination. Some states allow exemption for personal or religious beliefs. There are a large and growing number of individuals that adhere to a non-vaccination belief based on a multitude of reasons. The responses from this group to the possibility of liability for harm caused by non-vaccination have included, “if your child is vaccinated, why would my non-vaccinated child present a danger?” The answer to that question is “More than 95% of the people who receive a single dose of MMR will develop immunity to all 3 viruses. A second vaccine dose gives immunity to almost all of those who did not respond to the first dose.” That is not 100%.

The legal argument for criminal or civil liability is an interesting one and, of course, has two sides. In 2013, Arthur L. Caplan, et al., published an article in the Journal of Law, Medicine & Ethics proposing the basis for a claim of negligence for non-vaccination. The article reviews the necessary elements needed to establish a case for civil negligence. The elements include the need to establish that the person who caused the harm were required to conduct themselves in a manner that would not put others at risk (Have their child vaccinated). The person did not conform to the requirement (they did not have their child vaccinated). The non-conformity directly caused the harm (another child acquired the disease from their exposure to the non-vaccinated child). The non-conformity “proximately” caused the injury (the parent knew or should have known they were putting others at risk). The complaining party was harmed (cost of medical care, long-term disability or death).

On the other side of this legal debate, the non-vaccinating community believe that they should be immune from liability because of the various waivers that allow them to enroll their children in school or acquire an exemption from state vaccination requirements. Ultimately, this is an issue that the Court or State Legislatures will have to decide.

For example, the United States District Court For the Northern District of Ohio ruled in 2012 “that a parent’s refusal to vaccinate her children against diseases is not a “free exercise” of religion, and is tantamount to neglect.” The court went on to hold that, “although some states have chosen to provide a religious exemption from compulsory immunization, a state need not do so.” In Sherr v. Northport–East Northport Union Free Sch. Dist. (1987), a New York court stated that (“[I]t has been settled law for many years that claims of religious freedom must give way [to] the compelling interest of society in fighting … contagious diseases through mandatory inoculation programs.”).

This debate is not new, and the recent measles outbreak may see victims seeking recovery for harm caused by non-vaccinators. It is yet to be seen how the Courts will rule in this constantly evolving and emotionally charged issue.

Toni Zeller Kohlbeck, student intern-Jacoby & Meyers.