This is inspired by a recent episode of This American Life about parents who refuse to vaccinate their kids. One such child caught the measles overseas, then brought the disease back to the US. The child spread the disease to 11 other kids and exposed 60 others, forcing them to be quarantined. The actual story goes into more detail.
My question is this. Would a suit against the anti-vaccinating parents for economic damages succeed? Would such a suit even be possible, and on what basis?
I’m not interested in debating vaccination here. I’m interested in the technical discussion of a hypothetical lawsuit.
I certainly hope that there could be some form of liability, in regards to the parents.
They actively chose to raise the risk not only to their child, but to other children as well. They went against medical advice, and against studies on the subject, and in the process put children at risk.
These guys should have to pay every cent of those medical bills.
There are four elements to negligence:
1)The existence of a duty
2)Breach of that duty
3)which causes
4) harm
I see two problems. First in the duty column. I order for the infected children to recover, the parents who failed to act would have to have legally-understood duty to them. In American jurisprudence, there is no generalized duty to aid someone else’s children. Things can be negligent per se if some health or safety ordinance was violated. In absence of illegality of their act, I think there might not be a duty.
Second, in the causation column. You have to be the “proximate” cause of the harm, and the acts of others can “intervene” in the chain of causation, breaking it. In this case, were the other children vaccinated? If not, their parent’s failure to vaccinate could be an intervening act that breaks the chain of proximate causation.
Even if it does not break the chain of proximate causation, not vaccinating could be a form of contributory negligence. Contributory negligence can diminish or even eliminate recovery damages, even with a finding of liability. After finding liability, the jury can apportion negligence among the parties and damages are split proportionately. So, on a jury’s finding that the plaintiff was negligent, and the harm was worth $100,000, they can find the parents of the 11 infected children caused 98% of the harm with their own negligence – Plaintiff pays $2,000.
Edited to add: rules on contributory negligence, as well as the general law of torts, varies widely by jurisdiction.
Edited again: I suddenly wondered if this scenario could be framed as an intentional tort (assault, etc). Not sure.
I listened to the episode when it came out, and I’m pretty sure some of those 60 who were quarantined were adults. To the best of my recollection, part of the danger of unvaccinated children is that we’re not entirely sure how long the vaccines’ effects last into adulthood and/or there really aren’t requirements that we continue vaccinations then, barring for some health care workers or college students. Not to mention the risk to those with suppressed immune systems/the elderly. So the potential harm wasn’t just to other unvaccinated children.
It seems one could argue that exposing people to an unvaccinated child could be a breach of the general duty of care – especially given the mountains of evidence that vaccinations are generally safe; the potential harm is high and the cost of prevention is essentially nil. However, the vaccine hysteria is so high and the major media has decided it’s worth more money to keep people afraid of vaccines than to report the truth, so it might not be unreasonable to think vaccines are legitimately dangerous, even if it’s wrong. And if there’s no unreasonability, there’s no liability.
I found in this related article that none of the 11 children who contracted the disease were themselves vaccinated.
As to them, I personally doubt that liability exists. (Note that I am hardly an expert). California does have a contributory negligence scheme as I described above, and the if the Parents of Measles Child acted without reasonable care in not vaccinating, so did the Parents of the Measles 11.
As to the 60 quarantined people, again I feel there is no duty to those people, so no chance of negligence, UNLESS some law or ordinance was violated (for example if they failed to follow quarantine ordinances)
Unfortunately (or maybe fortunately), bad judgment and being a jerk are not always recoverable negligence.
Some of the children who caught the disease were unvaccinated simply because they were under the age when the vaccine is usually given. cite. I’d say the parents of those children did not act without reasonable care.
Here’s the state of affairs in Oregon. Recently, there were these fellows, who couldn’t quite figure out that they shouldn’t wander around their town when they might have measles (I can’t find the article now, but one of them went to a concert after being told to stay home).
Except that the original case was contracted overseas. Measles might be sufficiently rare here that there’s less of an expectation of vaccination for it, but common enough to be a significant concern in other countries.
Again, only my opinion, but I doubt you’re going to find a jury that would find they failed to use reasonable care when they didn’t specially vaccinate when visiting a country which is practically synonymous with hygiene. They went to Switzerland not Zaire.
Sure sure. My point, is that whether they had any duty to do a particular thing and whether they undertook it with reasonable care is at least a jury question; they are not obviously and without doubt liable for negligence.