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Has any law been established regarding non-vaccinated children who become the center of an epidemic?
Such a suit would likely be argued on precedence of similar cases, like those involving HIV or herpes, rather than actual legislation.
It would possibly be based on whether it was foreseeable that the unvaccinated child would be exposed to the disease and that the parent did nothing to isolate his child from others. For example, if you knew your unvaccinated child had been exposed to measles and you did not keep him at home or you let other children into your home.
There would also have to be a clear chain of events that linked the unvaccinated child to another infected person, and the epidemiologists are pretty good at that.
When I had an outbreak of shingles and was supposed to be home for two weeks, my boss insisted that I come in after the first week. I did and I still had weeping sores on my face. My manager asked me and the assistant manager how contagious I was and we both answered, "VERY!". I also told her that if I passed chicken pox on to any pregnant woman who then suffered a miscarriage because of it, she would be liable for making me come into work. I got my second week off. And what's funny is somehow I have no doubt the bank would have been sued if I had been made to come to work and exposed someone to chicken pox (besides which, who wants their employee with weeping sores on her face to come to work and wait on customers?).
It's not so much that a person would win a lawsuit like this. It's just the fact that they can sue for it in the first place.
American law is more dynamic than most people realize. The fact that it is based on the common law of England gives judges more flexibility than exists in some countries. Essentially, judges are not precluded from acting on their own and creating new causes of action in tort and other areas of the law when they deem it appropriate. Decisions can be appealed and ultimately it is up to the highest court in that state. Courts in states like California have historically been more willing to recognize the need to create new causes of action in appropriate situations. Its how we have gotten new law in fields like products liability and even family law. As long as a court is not relying on the state or federal constitution for its ruling, a state legislature can pass a law in future cases stating that no such cause of action exists in that jurisdiction.
The concept that someone could be sued and held liable for monetary damages for spreading or transmitting an infectious disease is indeed an interesting one. I will address two or three critical issues involved in such a case:
1. Should the cause of action exist at all?
The first thing to look to in imposing liability in any tort case is: Does a duty exist to engage or not engage in certain conduct? The first place one always looks when one wants to determine whether a duty exists is to the statutes of the state. All states have a mandatory vaccination law. The issue would seem to be the exemptions that exist under most state laws from these mandatory requirements. California, Mississippi, and West Virginia have the strongest vaccination laws in this country. I think it would be relatively easy to argue if a case arose in any of these states that a clear duty does exist to at least vaccinate your children against the childhood diseases. Does such a duty exist in other states? I think arguably, it does even if the state code allows for a personal and/or religious exemption from vaccination. My point would be that rule in the states is vaccination and that people who use a loophole to avoid the process are doing so against both the weight of science and public policy. The argument would be that while the state gives them the right to opt out, it does not give them the right to opt out of the consequences to themselves and others that would result from not being immunized.
2. Proximate Causation.
Assuming a duty does exist to vaccinate yourself or your children than how do we go about proving causation? Causation is generally proven in any tort case by calling an expert witness in that field, establishing his credentials, and than having him state an opinion. I can imagine a great number of people who would be qualified to offer expert testimony in such a case. These would include physicians with some expertise or qualification in infectious disease, the epidemiologist in state health department, a professor of epidemiology at a college or university. I can imagine certain key elements in the testimony. One would be being able to establish close contact between the sick person (who is the defendant in the lawsuit) and the unfortunate person who caught the disease. Incubation periods for the disease would be critical. It would be important to know just how infectious the disease is and how it is transmitted. Because of the widespread use of vaccination it is not common to see measles, mumps, rubella, or chicken pox. Whooping cough is still more common because of limitations with the vaccine. So, the actual disease that it is claimed was spread would be quite important. Proving proximate causation (a necessary element of such a case) would be challenging, but not impossible. A final point is that the law does not require absolute proof. It simply requires that expert testimony be presented to the effect that "It is probable that A transmitted the disease of measles to B". Another formulation of this statement that would be acceptable is that: "I testify to a reasonable degree of medical certainty that A spread measles to B". It would than become up to a jury to determine this issue.
3. Damages
If a contagious disease ends up resulting in death or permanent disability damages can be proven through testimony establishing past medical expenses, projected future medical expenses, lost wages, and pain and suffering. In most cases, I suspect that the person who becomes infected will get better pretty quickly and may have no lasting effect from the disease. In such cases, damages will be quite limited.
I saw this article in the Cornell Journal of Law and Public Policy.
"If you know the dangers of measles or for that matter whooping cough or mumps, and you still choose to put others at risk should you be exempt from the consequences of that choice? I can choose to drink, but if I run over it is my responsibility. I can choose not to shovel the snow from my walk, but if you fall, I pay. Why should failing to vaccinate your children or yourself be any different?"
IMO, in the right case there should be a right to bring an action against someone for spreading an infectious disease to others.
Well you have the elderly who may or may not have been vaccinated years ago, who can potentially be at risk, you have people who for health reasons cannot vaccinate, that are at risk, as well as those with weakened immune systems.
The only reason we have no fear of measles, mumps, polio, whopping cough or any other of the diseases that have been erradicated due to vaccinations, is because they have been irradicated, we no longer remember the severeness of these diseases.
What? The elderly haven't been vaccinated for those diseases because they HAD those diseases in childhood. Please do not worry about some unvaccinated child giving Grandpa the measles, mumps, chicken pox, etc., and killing him. He has lifetime immunity from the diseases themselves.
Do you really think the ONLY path to immunity is from a shot in the arm?
Why stop with children? Should you be able to sue your unvaccinated coworker for giving you the flu?
Imagine all the lawsuits with that one? Isn't the flu just as "deadly" as chicken pox?
Good point. As of now vaccines are mandated for children as a condition of being able to attend school. Should we extend that requirement to adults? No vaccine, no job. And you must get every vaccine that comes your way, no getting to decide that you want every vaccine except for HPV and the flu vaccine. You have to get all of the vaccines or be held liable and you lose your ability to earn an income or go to school.
Last edited by MissTerri; 04-16-2016 at 10:01 AM..
One question I have for those opposed to ANY vaccines. What if your kid steps on a rusty nail- will you then allow the tetanus shot?
That never happened when my kids were little, but it happen to me as a adult walking in a cemetery. I pulled the nail out, bled a lot, and I put peroxide and bandage on it. Never ran to the ER to get a tetanus shot. That peroxide must have done trick since this happened over 40 years ago.
I would have done the same if it happened to my kids.
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