February 23, 2015

From Law.Com

by Justan Chan

As the measles virus continues to spread across the country, furious parents are looking for remedies, both medical, and, of course, this being America, legal as well.

But, in this instance, health care lawyers agree: No matter how angry people are that they and their children have been exposed to a disease many thought had been eradicated in this country, there is almost no recourse under law. No federal vaccination mandate exists and many states allow parents to claim medical and religious exemptions, meaning that people cannot be held criminally responsible if their children are the source of an outbreak.

Can those parents be held civilly liable instead? It depends, said Meredith Duncan, a health care lawyer at Polsinelli.

“If there were a situation where the parents misled a school or institution that had a [vaccination] policy, that would open them up to civil liability,” she said. “But if they’re refusing treatment in states where the mandate is not necessary, it is difficult to make a case.”

Parents have more flexibility if the infection spread at a private school or institution than at a public school, Duncan explained.

Public institutions follow state regulations, so if a state allows exemptions, parents are not required to vaccinate their children to send them to public school. Private institutions, on the other hand, function independently and may have stringent vaccination rules, making it easier to hold parents accountable if they don’t vaccinate their children.

Duncan noted that any attempt to bring a civil case is complicated by a broader debate about whether the state can step in if it feels an unvaccinated child’s parents failed in their parental duties.

“This is not just a vaccination issue,” she said. “This is also a child welfare issue. I think that’s what makes civil liability against parents so difficult.”

A recent case in Michigan highlighted a new willingness to characterize of the failure to vaccinate as indicative of parental neglect: A court was asked to order four children to get the measles vaccine against their parents’ wishes. The child protective service workers overseeing the children also asked to remove the mother and father’s parental rights. The judge has yet to make a decision, but the case is one that ventures into “new territory,” the parents’ attorney told the Detroit Free Press.

Making an argument to hold doctors civilly liable may be hard as well, said Kathryn Stalmack, also of Polsinelli, a specialist in health care litigation. Although these parties face a legal liability for exposing people to certain infections such as H.I.V., they don’t necessarily run into such risk in cases involving diseases like measles. Physicians don’t need to tell patients about the potential consequences of foregoing a measles vaccine and are, therefore, not legally responsible if an outbreak happens.

“Without a federal or state requirement mandating physicians to inform, it’s going to be very difficult to prove [liability] in a civil matter,” Stalmack said.

Given the paucity of viable legal options, states have recently pushed for restrictions on exemptions. California officials introduced legislation to get rid of vaccination waivers for non-medical reasons.

In the meantime, another option remains: class actions. “Most attorneys are not going to be interested in suing the individuals,” said Lowell Brown, head of Arent Fox’s health care practice group. “They’ll be interested in class actions maybe against associations or organizations that might be urging parents not to vaccinate their children.”

Those targets include groups like the National Vaccine Information Center, which suggests a link between vaccinations and regressive autism. Although multiple agencies such as the Centers for Disease Control and World Health Organization have repeatedly disputed the relationship, the NVIC’s insistence that there may be one has led to accusations of spreading misinformation. These claims can be pursued under the law, but chances are there won’t be many, given the current state of the legal system, Brown said.

“People who propagate debunked scientific or medical theories are subject to liability,” he said. “They ought to be subject to professional derision and, perhaps, some kind of penalty.”