Tort liability options for the anti-vaccination movement

To date in 2014, 49 people in California have been diagnosed with measles, a vaccine-preventable disease (compared to four cases last year by this time). Twenty-one of them are in Orange County; of those, seven have been hospitalized. We are also seeing an outbreak of pertussis. Vaccine-preventable diseases are returning, causing suffering and death. The law can and should play a role in reducing this problem.

Last week, we discussed school immunization requirements and exemptions (See "Limiting vaccine exemptions benefits all," Mar. 28, 2014, page 7). But school immunization requirements are not the only legal option. They have the advantage of increasing vaccination rates in children, which may prevent harm from occurring. But if rates of exemptions are high and outbreaks do happen, the legal system has other options. One such option is to force those responsible to pay via tort liability.

Liability for Failure to Vaccinate

In 2008, an intentionally unvaccinated child, an American citizen, acquired measles while traveling in Europe. The American child returned to his home in San Diego and caused an outbreak. Among those infected was an infant that was hospitalized. It could have been worse: Measles can kill, cause brain damage and other harms. As strongly argued by ethicist Art Caplan on Harvard Law's Bill of Health blog, in cases like this, tort liability is appropriate. The risks of not vaccinating are far higher than the risks of vaccinating, so under a balance of risks - the famous Hand Formula - liability is appropriate. That vaccinating has tremendous benefits is the scientific and medical consensus. Not vaccinating can be fairly described as a negligent choice. It is unfair to make the family harmed pay for someone else's unreasonable choice; they deserve compensation.

In addition, without liability, those who do not vaccinate would externalize the costs of their actions: They would be able to roll them onto those infected by the unvaccinated child. Imposing liability can force them to consider those costs when making the decision and may positively affect some families' vaccination decision. (There is a caveat, though: It is unlikely to deter the most committed anti-vaccine activists, those who sincerely, and against the evidence, believe that vaccines are the root of all evil).

The problem is that normally our system does not impose a duty to act. Not vaccinating can be seen as nonaction. There are three reasons to impose liability anyway.

First, the decision to not vaccinate is not as passive as sitting and watching someone hurt. Some parents who choose not to vaccinate proudly proclaim that they have "done their research" and talk about actively defending their decision. It can therefore be seen as an active choice. At the very least, it is acting to take an intentionally unvaccinated child abroad to areas where preventable diseases are prevalent.

Second, even if it's nonaction, the no-duty-to-act rule is not an immovable object or natural phenomena. It's a policy choice, a human instrument: It's in our hands. When there are valid policy reasons to deviate from it, we should. Not vaccinating puts the unvaccinated child at risk, and puts others at risk of serious health consequences, even death. If someone chooses this path, in spite of its risks, it's fair to make them pay for costs they cause to others. And this duty can be well defined: It is not a huge intrusion into personal autonomy.

Finally, if the courts will not, it is perfectly appropriate - and desirable - for the legislature to impose such a duty. See Dorit Reiss, "Compensating the Victims of Failure to Vaccinate: What are the Options?" (2014).

Proving causation will be challenging in some cases, though health agencies are very good at tracking cases of, for example, measles to the initial (index) case. But causation can be a challenge in any tort claim. Whether it is a challenge in these would depend on the circumstances of the specific case.

Liability for Providers of Anti-Vaccine Misinformation

Anti-vaccine sites regularly suggest that vaccines cause harms that the science shows they do not, like autism, allergies and Sudden Infant Death Syndrome. Parents may decide not to vaccinate their children because of those false claims. If anti-vaccine misinformation is provided by a physician to a patient, and the patient is harmed, a medical malpractice claim can be brought, since such advice directly deviates from the standard of care. In other situations - a patient infects a third party, someone chooses not to vaccinate based on online discussions or an article on an anti-vaccine site - that doesn't work.

The tort of negligence misrepresentation that causes physical harm seems tailor-made to handle these situations, even though it had not yet been applied to them. It has been applied in other contexts. Courts have been reluctant to use it against publishers, concerned that applying it will prevent publishers from publishing complex materials authors provide, since they can be held liable for inaccuracies unless they do a thorough check. Smith v. Linn, 587 A.2d 309 (Pa. 1991). But the same considerations do not apply to the initial authors. And false factual statements get less protection under our First Amendment than other forms of speech.

There are few situations where liability is more justified than for false factual statements that can lead to outbreaks of preventable diseases, to children and adults suffering, even dying. Anti-vaccine statements directly fit those criteria. If an organization or person negligently or intentionally misleads - by denying the risks of vaccine-preventable diseases, by claiming vaccines have risks that they do not, or by suggesting treatments for vaccine preventable diseases with no support (like vitamin C for preventing polio) - and someone is harmed, why shouldn't the provider of false information have to compensate the victim of the misinformation?

A claim for negligent misrepresentation that causes physical harm is not an easy one. Plaintiff would have to show that the information was false, that it was negligently given, that there was reasonable reliance, causation and damages. But if plaintiff can show all that in relation to anti-vaccine misinformation, there is no reason to deny compensation.

This tort can work not just for the child of the person relying on the false information. Subject to the usual requirements of proximate cause, if a parent left a child unvaccinated because of anti-vaccine misinformation and that child infected another, that victim can also sue whoever provided the misinformation for misrepresentation that caused physical harm. Yes, there is an intervening cause: the parent that made a choice not to vaccinate. But not only is that choice foreseeable, it's exactly what anti-vaccine organizations intend and desire when they publish information overstating the risks of vaccines and underplaying their benefits. There is every justification to require that those responsible for providing the misinformation pay for the natural consequences of their actions.

The anti-vaccine movement has direct costs in suffering and death. By leaving children at risk of preventable diseases, it had brought back measles, and contributes to outbreaks of pertussis. Unvaccinated children also contract other preventable diseases, and may infect others. Ideally, we should prevent harm from such misinformation. But if harm does happen, in spite of education efforts or school immunization requirements, the law should not stand helpless. Civil liability should be imposed on those responsible for the choice: the providers of misinformation, and those who choose to reject expert advice in favor of such misinformation.