More on the Debate over Vaccines and Liability

Bill of Health Contributor Art Caplan has a new opinion piece online at MedScape: “YOUR Fault if Your Unvaccinated Child Makes Someone Sick.” (Note: Registration to access MedScape is free.)

Are you doing enough to make sure that your patients and their kids are getting vaccinated? Sometimes we leave this for the pediatrician to worry about, but I think that every doctor who sees patients should make it a part of taking the history to ask if they are up to date on vaccinations. Have they gotten their boosters? What are they doing with their kids?

All over the United States, we are tragically seeing the recurrence of diseases that weren’t here 20 years ago. Whooping cough, mumps, and measles are all on the rebound because people don’t vaccinate their kids or they don’t get the booster shots that they need to grant immunity to themselves. 

And Dorit Reiss has a new article up on SSRN: “Compensating the Victims of Failure to Vaccinate: What are the Options?

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Conference Announcement and Call for Abstracts, 2014 Petrie-Flom Center Annual Conference

The Petrie-Flom Center has released the description and call for abstracts for its 2014 Annual Conference: “Behavioral Economics, Law, and Health Policy.” The conference will be held at Harvard Law School on May 2 and 3, 2014, and seeks to address the following questions:

  • Are there features unique to health and health care that prevent individuals, groups, and policymakers from making the best decisions?  What is a “best” decision, i.e., whose perspective should be paramount?
  • What types of barriers exist to rational decision making in the health care context, and what does rational decision making look like here?
  • Is exploitation of framing effects, default rules, nudges, and other elements of choice architecture appropriate when it comes to human health, or is this an area where pure autonomy should reign – or perhaps strong paternalism is needed? Is health policy special?
  • What should policymakers do when there is conflict between outcomes that might be good for individuals but not society more generally, and vice versa?  Where should the nudges push?
  • Which areas of health law, bioethics, and biotechnology policy are most amenable or resistant to manipulation of choice architecture?  When nudges are not plausible, what is the best way to overcome bounded rationality?
  • When might behavioral economics lead to the wrong results for health law, bioethics, and biotechnology policy?
  • How can manipulations of choice architecture be best evaluated empirically, and what ethical concerns might such research raise?
  • What are the most interesting or compelling health law, bioethics, and biotechnology policy nudges we should be thinking about today in the realms of obesity, organ donation, end-of-life care, biospecimen ownership and research, human subjects research, HIV testing, vaccination, health insurance, and other areas?

Please note that this list is not meant to be at all exhaustive; we hope to receive papers related to the conference’s general theme but not specifically listed here.

Abstracts are due by December 2, 2013.

For a full conference description, including the call for abstracts and registration information, please visit our website.

Art Caplan on New York State’s Mandate to Vaccinate against the Flu or Wear a Mask

Art Caplan has co-authored a new article, with Nirav R. Shah, published online today by JAMA. In “Managing the Human Toll Caused by Seasonal Influenza: New York State’s Mandate to Vaccinate or Mask,” Caplan and Shah discuss New York’s new mandate that health care personnel who have not been vaccinated against the flu must wear a mask during the coming flu season.

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Art Caplan: Prayer no substitute for vaccination

Art Caplan has a new opinion piece up at nbcnews.com on a recent outbreak of measles centered around a church in Newark, Texas. From the piece:

The congregation of Eagle Mountain International Church in Newark, Texas, recently discovered that prayer is no substitute for vaccination.

After visiting Indonesia, an unidentified visitor to the megachurch 50 miles outside Dallas — where ministers have long favored faith-healing over vaccinations — infected at least 21 people in the church and neighboring towns with measles. One victim was a 4-month old baby too young to receive a vaccination and thus totally dependent on others to do so.

Confronted with the measles outbreak, church leaders changed their tune, launched a vaccination drive, hosted vaccination clinics and encouraged the entire congregation to get immunized. The Old Testament is “full of precautionary measures,” senior pastor Terri Pearsons said after the mini-epidemic.

Theological revelation aside, Pearsons and other church leaders should have thought about this sooner. They and other vaccine resisters — from wealthy suburbanites who worry about the dangers they’ve heard from celebrities to conspiracy theorists who see only corporate profits driving a push to cover-up risks — are directly to blame for spreading unwarranted fear of vaccines.

Read the full article here.

Non-Medical Exemptions: Weighing Public Health and Individual Rights

By Y. Tony Yang, ScD, LLM, MPH

More and more frequently, the media are reporting two potentially related and troubling developments: an alarming increase in outbreaks of deadly infectious vaccine-targeted diseases and the growing refusal by parents to allow their children to be vaccinated. (See this recent U.S. News & World Report article on cases in New York). Public health officials may therefore fairly ask whether their state vaccine exemption laws are unnecessarily and unintentionally sowing the seeds for a public health crisis and, if so, how their laws could be changed soon to head off avoidable epidemics.

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Guest Post: No liability for failure to vaccinate? The case has not been made: A Response to Mary Holland

As of Friday, June 28, this post is closed to further comments. We want to thank the many readers who have engaged in a vigorous and civil discussion on the recent posts to the Bill of Health that engage questions related to the debate over vaccines. In general, we do not moderate discussions on the site. However, due to an increasing number of comments that violate our policies regarding abusive and defamatory language and the sharing of personal information, we are closing these posts to comment.

By Dorit Rubinstein Reiss, LLB, Ph.D.

Dorit Rubinstein Reiss (LLB, Ph.D.) is Professor of Law at UC Hastings College of the Law. She has published articles on regulation and administrative law and teaches tort law. She is also a member of the Parents Advisory Board of Voices for Vaccines and writes the blog Before Vaccines

In a guest post on this blog, Mary Holland, JD, suggests that there are no grounds for imposing tort liability on parents for failure to vaccinate alone, even if it led to another person being infected. Holland’s post is courteous and matter-of-fact, and there are certainly arguments for that position, especially the argument that common law rarely imposes a duty to act. But Ms. Holland did not make that case.

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Guest Post: Crack Down on Those Who Don’t Vaccinate?: A Response to Art Caplan

As of Friday, June 28, this post is closed to further comments. We want to thank the many readers who have engaged in a vigorous and civil discussion on the recent posts to the Bill of Health that engage questions related to the debate over vaccines. In general, we do not moderate discussions on the site. However, due to an increasing number of comments that violate our policies regarding abusive and defamatory language and the sharing of personal information, we are closing these posts to comment.

By Mary Holland, J.D.

Mary Holland is Research Scholar and Director of the Graduate Legal Skills Program at NYU Law School. She has published articles on vaccine law and policy, and is the co-editor of Vaccine Epidemic: How Corporate Greed, Biased Science and Coercive Government Threaten Our Human Rights, Our Health and Our Children (Skyhorse Publishing, 2012). 

Dr. Art Caplan recently posted an editorial, “Liability for Failure to Vaccinate,” on this blog. He argues that those who contract infectious disease should be able to recover damages from unvaccinated people who spread it. If you miss work, or your baby has to go to the hospital because of infectious disease, the unvaccinated person who allegedly caused the harm should pay. Dr. Caplan suggests that such liability is apt because vaccines are safe and effective. He sees no difference between this situation and slip-and-fall or car accidents due to negligence. Arguing that “a tiny minority continue to put the rest of us at risk,” he suggests that public health officials can catch the perpetrators and hold them to account through precise disease tracing.

Dr. Caplan’s assertions to the contrary, vaccines are neither completely safe nor completely effective. In fact, from a legal standpoint, vaccines, like all prescription drugs, are “unavoidably unsafe.”  [See, e.g., Bruesewitz v. Wyeth, 562 U.S. __ (2011).‎] Industry considered its liability for vaccine injury so significant that it lobbied Congress for the 1986 National Childhood Vaccine Injury Act, providing doctors and vaccine manufacturers almost blanket liability protection for injuries caused by federally recommended vaccines. [See Authorizing Legislation.] The liability risk was so serious that the federal government created a special tribunal under the 1986 Act, the Vaccine Injury Compensation Program, to pay the injured. Moreover, the Supreme Court in 2011 decided Bruesewitz v. Wyeth, prohibiting any individual from filing a civil suit for a defectively designed vaccine in any court in the country. Industry’s extraordinary protection against liability for vaccine injury does not correspond with glib statements, like those of Dr. Caplan, that vaccines are safe and effective. On the contrary, the law acknowledges that vaccines cause injury and death to some, with no screening in place to mitigate harm.  Read More

More on Liability for Failure to Vaccinate

As of Friday, June 28, this post is closed to further comments. We want to thank the many readers who have engaged in a vigorous and civil discussion on the recent posts to the Bill of Health that engage questions related to the debate over vaccines. In general, we do not moderate discussions on the site. However, due to an increasing number of comments that violate our policies regarding abusive and defamatory language and the sharing of personal information, we are closing these posts to comment.

Art Caplan discusses his recent Bill of Health post over at WBUR’s Here and Now.  Take a listen.

Liability for Failure to Vaccinate

As of Friday, June 28, this post is closed to further comments. We want to thank the many readers who have engaged in a vigorous and civil discussion on the recent posts to the Bill of Health that engage questions related to the debate over vaccines. In general, we do not moderate discussions on the site. However, due to an increasing number of comments that violate our policies regarding abusive and defamatory language and the sharing of personal information, we are closing these posts to comment.

By Art Caplan

Measles are breaking out all over Britain.  Getting fewer headlines is the fact that measles are back in the USA too.  In fact they are in our region.  A mini-epidemic is raging in Brooklyn.  Measles for cripes sake!  The disease that many of us over 60 had as kids that should never occur is back with a vengeance.  The reason for the diseases reappearance is simple—failure to vaccinate.  Maybe it is time to get tough on those whose choices put others at risk.

For decades, there has been a safe, effective vaccine that works exceedingly well against the measles–95% full protection for a kid who has been vaccinated– and nearly equally well at preventing transmission to others.  The more people have been vaccinated the tougher it is for measles to gain a foothold.

NY City health officials have reported 30 cases so far–26 in Borough Park and four more in Williamsburg.  The NY Daily News reports that the consequences of this outbreak have been dire:

“There have been two hospitalizations, a miscarriage and a case of pneumonia as a result of this outbreak,” a Health Department spokeswoman said. “All cases involved adults or children who were not vaccinated due to refusal or delays in vaccination.”

So far the outbreak has been among religious Jews some of whom shun getting the vaccine for their kids out of fear it causes autism Dr. Yu Shia Lin of Maimonides Medical Center in Borough Park told The News.

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