Free to choose but liable for the consequences: should non-vaccinators be penalized for the harm they do

Free to Choose but Liable for the Consequences: Should Non- Vaccinators Be Penalized for the Harm They Do? Arthur L. Caplan, David Hoke, Nicholas J. Diamond, and Viktoriya Karshenboyem I. Introduction vaccine, although his parents intend to have him vac- Consider this hypothetical scenario involving a choice cinated when appropriate. A pediatrician determines not to vaccinate a child. Ms. S has a niece who is autis- that Michael also has measles. Unfortunately, after tic. The girl’s parents are suspicious that there is some being hospitalized, the child dies. Michael’s parents relationship between her autism and her Measles have heard that Jinny previously had the measles and Mumps and Rubella (MMR) vaccination. They have know, from a prior conversation with Ms. S on the shared their concerns with Ms. S. She then declines playground, that she is strongly against vaccinations. to have her own daughter, Jinny S., vaccinated with Distraught by Michael’s sudden death and believing the MMR vaccine. To bypass the state’s mandatory that Ms. S, by choosing to not vaccinate her child, is vaccination requirement, Ms. S claims a state-legis- responsible for his death, Michael’s parents ask their lated “philosophical exemption,” whereby she simply local district attorney to file criminal charges. They attests to the fact that she is opposed to vaccinating also consult with an attorney, suspecting that even if a her daughter due to a “conscientiously held belief.” At criminal lawsuit is unsuccessful, they might be able to the age of four, Jinny goes on a trip by airplane to Ger- recover damages from Ms. S in civil court.1 many with her mother. After returning to the United Is there a case for holding non-vaccinators legally States, she attends daycare despite having some mild liable for harm caused to others by their inaction? cold symptoms. Subsequently, she develops a classic This will depend on the answers to two questions. measles rash, at which point her mother brings her to First, does the scientific capability exist to prove that a pediatrician and keeps her home from daycare. Jinny infected Michael with measles? If so, are there About one week later, a one-year-old daycare class- legal grounds for either criminal or civil liability? mate of Jinny’s — Michael P. — develops a severe ill- ness. The little boy is too young to receive the MMR Can Science Link Jinny’s Measles Infection to Michael’s Death? Arthur L. Caplan, Ph.D., is the Drs. William F and Virginia Can biomedical science reliably ascertain the source Connolly Mitty Professor and Head of the Division of Bioeth- of a measles infection, such that it could determine ics at New York University Langone Medical Center. David whether one person transmitted the measles virus to Hoke, M.D., M.B.E., is an Emergency Medicine Resident at another? In the law, if there is not sufficient scientific Cooper University Hospital in Camden, NJ. He is a graduate evidence of transmission from Jinny to Michael, cau- of Jefferson Medical College, holds a Masters in Bioethics from the University of Pennsylvania, and  earned his Bachelor of sation cannot be determined, and there is no viable Science degree in Biology with Honors from Villanova Uni- legal case. versity. Nicholas J. Diamond, J.D., is currently pursing a There is adequate scientific capability to determine Masters of Bioethics at the Perelman School of Medicine at with a great deal of confidence, though not absolute University of Pennsylvania. He holds a law degree from the certainty, that one person transmitted the measles Charleston School of Law and a Bachelor of Arts degree in philosophy from Georgetown University. Viktoriya Karsh- virus to another, but there is not much scientific litera- enboyem, J.D., is an Associate in the New York office of Kaye ture that directly addresses the question of causation Scholer. for the measles. Therefore, most of the available evi- 606 journal of law, medicine & ethics  Caplan, Hoke, Diamond, and Karshenboyem dence must be derived from expert testimony. How- we are getting frequent importation of viruses ever, if this hypothetical case were litigated, qualified wit [sic] the same sequence into various loca- experts would likely be asked to interpret the data and tions in the US.3 make the causal link. In the view of this CDC expert, the most useful method in establishing causation is epidemiol- Is there a case for holding non-vaccinators ogy rather than laboratory methods. A thorough legally liable for harm caused to others by investigation would need to be undertaken to present a timeframe of symptom onset with both their inaction? children. Scientists would need to determine if Jinny contracted measles during her trip to Ger- many or if she contracted it while in the United Donald Jungkind, Ph.D., is the Director of Clinical States. A thorough vetting of common contacts would Microbiology Laboratories at Thomas Jefferson Uni- be required. versity in Philadelphia. According to Dr. Jungkind: Viral sequencing alone is not the best technique for proving causation. Despite the fact that laboratory The [Center for Disease Control (CDC)] is studies have shown mutation rates that rival HIV,4 interested in the epidemiology of measles field studies have shown the virus to be much more cases because that can be important to define stable, eliminating the possibility of accurately track- transmission and institute prevention. Most ing predictable mutations from one person to another. measles in the USA begins as an imported Sequence identity can reliably rule out a patient by case. CDC allows labs to send specimens to the matching sequences. However, it can only “rule in” public health system where at either the city, transmission by confirming that both children had the state, or federal level, they culture the virus and same viral strain and that one possibly transmitted the get it “fingerprinted” at CDC. CDC has a World virus to the other. Health Organization database where they can An important question raised by laboratory meth- match the strain to see where it came from.  They ods is how reliably one can isolate the virus. As recently can tell if it came from a city in England, from a as 1998, a key reference work claimed that “[p]racti- particular African country, etc. They could defi- cally, the diagnosis of acute infections caused by MMR nitely link primary and secondary cases in this viruses has to be based on serological assays since country.2 these viruses or viral antigens are rarely recovered or detected from infected individuals.”5 What does that When a representative of the CDC was asked about mean? Most people will probably not know. However, causation in the hypothetical case of Jinny and a more recent CDC publication indicates that, while Michael, he said, still technically difficult, viral isolation has become much more reliable. Currently, the CDC recommends The best way to link the infections in the sce- oropharyngeal or nasopharyngeal swabs as primary nario that is described would be epidemiologi- collection methods, and urine collection as preferable cally. For example, a child in a US daycare set- if collection is delayed more than 5 days after rash ting [like Michael] is not likely to have multiple onset.6 Best collection times are within 3 days, ideally exposures of measles. Assuming that measles within 7, and not past 10 days after rash onset.7 Both is confirmed by some laboratory method (IgM children in the hypothetical scenario likely would have detection and/or PCR), the exposure patterns had samples taken in the normal course of clinical and timing of the appearance of clinical signs care in this time frame. should be able to identify the source. Yes, we While viral collection and sequencing can be can sequence viruses and we would expect that helpful in establishing causation, a causal claim viruses in the same chain of transmission would ultimately must depend on epidemiology for con- have identical sequences in the 450 nt window firmation of transmission. Essentially, measles is a used for genotyping.  So, sequence identity could rare and reportable disease. Making contact with help confirm the epi link with the important someone else infected with measles is incredibly caveat that viruses with identical sequences will rare because the incidence of measles is so low in the also be detected if there are multiple impor- United States. Researchers can follow and analyze tations from the same source. For example, measles cases to establish temporal and spatial links right now there is a lot of measles in Europe and from person to person. conflicts of interest in the practice of medicine • fall 2012 607 IND EPEND ENT This type of tracking would provide a reliable case plaintiff is entitled to protection.14 Similarly, Michigan for causation in our hypothetical case. Assuming Jinny courts have cited that the “determination of whether a contracted measles while in Germany, it is unlikely duty should be imposed upon a defendant is based on that Michael had encountered another individual with a balancing of the societal interest involved, the sever- measles. Epidemiological analysis could link the two ity of the risk, the burden upon the defendant to meet children with a high degree of confidence if all evi- the duty, the likelihood of occurrence and the rela- dence supported transmission.8 tionship between the parties.”15 Maryland courts have Utilizing the scientific tools available today, it can- held that an individual has a legal duty to refrain from not be proven with 100 percent certainty that Jinny conduct that a reasonable person would know, or have infected Michael with measles. Nevertheless, current reason to know, might constitute an unreasonable risk scientific techniques could lead experts to state they of harm to others.16 Courts have long held that individ- believe that the preponderance of the evidence, with uals with hazardous, contagious diseases have a legal 95 percent certainty or better, that Jinny infected duty to protect others from the danger of infection.17 Michael. The foreseeability of harm is a crucial factor in determining the existence and scope of an individual’s II. Legal Analysis of Civil and Criminal legal duty.18 As the Maryland Court of Appeals has Liability held, Is there the potential for civil or criminal liability in the hypothetical? A strong argument can be that a One who knows he or she has a highly infectious prima facie case for civil liability exists under a theory disease can readily foresee the danger that the of tortious negligence. There may also be the potential disease may be communicated to others with for criminal liability. whom the infected person comes into contact. As a consequence, the infected person has a duty to Civil Liability take reasonable precautions — whether by warn- In the hypothetical, tort liability provides a direct ave- ing others or by avoiding contact with them — to nue for Mr. and Mrs. P to seek recovery for the harm avoid transmitting the disease.19 suffered as a result of the loss of their son. Under a theory of tortious negligence, Mr. and Mrs. P could In order for the defendant to foresee the harm, she bring a cause of action that seeks to hold Ms. S. liable must have either actual or constructive knowledge.20 for failing to have Jinny vaccinated.9 As others have Constructive knowledge encompasses a gamut of pos- noted, “Tort liability could encourage vaccination of sible mental states, such as “one who is deliberately children among parents who might otherwise take indifferent in the face of an unjustifiably high risk of advantage of the easy availability of a philosophical harm,” or “one who merely should know of a danger- exemption.”10 ous condition.”21 To establish a prima facie case for tortious neg- ligence, a plaintiff must demonstrate that: (1) the Duty with an Exemption defendant owed the plaintiff a legal duty, requiring The extant case law across all jurisdictions is bereft of the person to conform to a certain standard of con- cases directly factually similar to the Jinny/Michael duct for the protection of others against unreasonable hypothetical. Courts have, however, considered lia- risks; (2) the defendant has breached that duty; (3) bility for the negligent transmission of an infectious the breach of that duty was both the direct and proxi- disease — ranging from smallpox to herpes — since mate cause of the harm suffered; and (4) the plain- Smith v. Baker22 in 1884, where the court held a par- tiff suffered damages.11 The plaintiff must prove these ent liable for negligently taking his children, who elements by a preponderance of the evidence, mean- were infected with whopping cough, to the plaintiff ’s ing that the plaintiff need not exclude every possible boarding house. Nevertheless, in the case of Jinny, explanation. Rather, reasonable persons may conclude where a parent has validly utilized the statutory pro- that the defendant’s action was a substantial cause of tection afforded by a philosophical exemption, estab- the harm suffered.12 lishing that a duty exists and, subsequently, has been breached, is difficult.23 Duty Case law supports a need to manage the incidence The existence of a legal duty is a question of law for the of infectious disease by requiring of individuals who court.13 California courts have held that a legal duty knowingly have a communicable disease to take rea- is an expression of the “sum total” of policy consider- sonable precautions to prevent its spread. While Ms. ations that guide the law in determining whether the S has a strong argument that she was merely relying 608 journal of law, medicine & ethics  Caplan, Hoke, Diamond, and Karshenboyem on the statutory protection afforded by a philosophi- Breach cal exemption, Mr. and Mrs. P may nonetheless assert Returning to the original hypothetical, supposing that that such an exemption does not negate the funda- Mr. and Mrs. P have successfully demonstrated that a mental duty one has to act reasonably in preventing duty of care exists. Ms. S should have taken reasonable the spread of disease to others. One can make a legit- precautions to reduce the potential risk of Jinny act- imate, state-sanctioned choice not to vaccinate, but ing as a vehicle for the spread of an infectious disease. that does not protect the person making that choice These reasonable precautions could well encompass, against the consequences of that choice for others. notifying those with whom Jinny regularly comes into If this argument were advanced, Mr. and Mrs. P contact, e.g., people at her school, that she has not been vaccinated and refraining from participa- tion in activities that have a high potential to One can make a legitimate, state- spread the disease, if there is a reasonable con- cern that Jinny has become infected. If Ms. S sanctioned choice not to vaccinate, but had not taken measures such as these, it would that does not protect the person making be likely that the court would find that the duty that choice against the consequences of of care has been breached. that choice for others. Causation Causation requires that, as a factual matter, the defendant’s act directly contributed to produc- would need to demonstrate that, though Ms. S did not ing the plaintiff ’s injury or loss. Traditionally, courts have actual knowledge that Jinny had measles when have used the “but for” test to determine whether she came into contact with Michael, she did have the defendant’s act satisfied this requirement. Under constructive knowledge. Absent vaccination, Jinny this test, the defendant’s conduct satisfies causation was part of a group at high risk for the development where the event would not have occurred but for her of measles. A parent in Ms. S’s position could foresee conduct.24 Mr. and Mrs. P must demonstrate, by a that, without vaccination, the likelihood that a child preponderance of the evidence, that Jinny’s being ill such as Jinny might contract measles was substan- directly caused Michael’s death. tially higher than if she had been vaccinated. Mr. and In the hypothetical, demonstrating causation would Mrs. P would, in turn, need to demonstrate that a rea- largely be a product of laboratory testing supported by sonable person in Ms. S’s positions would have a duty epidemiological inquiry as presented in expert affida- to take further steps regarding the ramifications of vits. The scientific evidence would then strongly sup- Jinny not being vaccinated. port the claim that Jinny was, in fact, the source of Michael’s fatal disease. Consequently, Mr. and Mrs. P Duty without an Exemption would likely be able to support their case. A closely related scenario, which is perhaps more Proximate causation imposes limits on causation common, retains all of the facts of the original hypo- such that the effects of remote or unexpected and thetical, save the sole change that Ms. S does not claim unforeseen consequences are negated. To satisfy a philosophical exemption to the vaccine mandate — proximate causation, Mr. and Mrs. P would have to she simply does not have her child vaccinated. Absent demonstrate that Ms. S’s actions were a substantial the statutory protection afforded by the philosophical factor in bringing about the alleged injury. In short, a exemption, it will be far easier for Mr. and Mrs. P to court would consider whether Ms. S could have fore- prove the existence of a legal duty to protect against seen Michael’s death. In making this determination, the consequences of that choice. the court would weigh the risks of Ms. S’s failure to In the hypothetical, the philosophical exemption vaccinate Jinny, her failure to warn others with whom served as an initial line of defense for Ms. S. In the she regularly came into contact, and her failure to case of a simple failure to vaccinate, however, Ms. S’s withhold her child from daycare when she was ill, position will be far more vulnerable. Now she will have knowing potentially vulnerable children were pres- to defeat Mr. and Mrs. P’s plausible argument that Ms. ent. A jury would have to ascertain whether a reason- S had a legal duty — given the combination of con- able person in Ms. S’s position would have anticipated structive knowledge and the foreseeability that Jinny the risk of Michael’s death such that the failure to was at risk for measles — to act as would be expected vaccinate Jinny was a substantial factor in bringing of a reasonable person and take further precautions to about that death. prevent harm to others. conflicts of interest in the practice of medicine • fall 2012 609 IND EPEND ENT There are no reported cases in which criminal liability has been imposed on parents for failing to vaccinate their children, where such failure has caused the death of another. Nevertheless, a valid criminal claim could be brought especially against a non-vaccinator acting outside the shield of a legislative exemption. Damages a state law permitting exemptions, that may not create Assuming that the first three elements of the prima complete protection against liability for the adverse facie case have been successfully demonstrated, Mr. consequences of that choice. Choices about vaccina- and Mrs. P would not have any difficulty in showing tion have consequences, and sometimes, sadly, deadly that they have suffered actual damages. Mr. and Mrs. consequences. It will be up to the courts to determine P would be able to recover general damages — to com- whether exemption statutes suffice to give complete pensate for pain and suffering as a result of the loss protection against liability no matter how negligent, of their son Michael—and special damages — to com- risky, or indifferent to the welfare of others a non-vac- pensate for quantifiable expenses incurred in treating cinating parent is in exposing a child to others. The his measles. scientific and legal foundation for bringing charges against non-vaccinators for the harm they do exists. Criminal Liability There are no reported cases in which criminal liability Acknowledgements has been imposed on parents for failing to vaccinate The authors also wish to acknowledge helpful comments from members of the Center for Vaccine Ethics and Policy. Their website their children, where such failure has caused the death can be found at: http://www.centerforvaccineethicsandpolicy.org/. of another. Nevertheless, a valid criminal claim could be brought especially against a non-vaccinator acting References outside the shield of a legislative exemption. A New 1. This scenario is loosely based on fictional Season 10, Episode York court has held that a parent’s knowing failure to 19 of Law & Order: Special Victims Unit. have his child vaccinated against measles in the midst 2. D. Jungkind, “Re: Tracing Viruses,” email to David Hoke, March 7, 2011 (emphasis added). of a measles outbreak or epidemic could rise to the 3. CDC NCIRD DVD Inquiry, “FW: ‘FW: Tracking Viruses,’” level of neglect under New York’s Family Court Act.25 email to David Hoke, March 14, 2011. This instance highlights the willingness of courts to 4. R. Hunt, “Human Immunodeficiency Virus. Anti-HIV Ther- apy,” University of South Carolina School of Medicine, avail- consider more than mere civil liability for the failure able at <http://pathmicro.med.sc.edu/lecture/hiv14a.htm> to vaccinate, where a situation is especially dire. (last visited June 26, 2012): S. J. Shrag, P. A. Rota, and W. J. The case against Ms. S, however, probably could Bellini, “Spontaneous Mutation Rate of Measles Virus: Direct Estimation Based on Mutations Conferring Monoclonal Anti- not be for neglect, as the hypothetical posits that she body Resistance,” Journal of Virology 73, no. 1 (1999): 51-54. availed herself of the statutory protection afforded by 5. I. Julkunen, I. Davidkin, and C. Oker-Blom, “Methods for a philosophical exemption. This claim insulates her Detecting Anti-Measles, Mumps, and Rubella Virus Antibod- ies,” in J. R. Stephenson and A. Warnes, eds., Diagnostic Virol- from criminal liability under neglect. Rather, Mr. and ogy Protocols (Totowa: Humana Press, 1998): at 154. Mrs. P might pursue a claim for criminally negligent 6. Center for Disease Control, Manual for the Surveillance of Vac- homicide since criminal homicide constitutes negli- cine Prevention Diseases, Measles Virus Isolation, available at <http://www.cdc.gov/vaccines/pubs/surv-manual/chpt07- gent homicide when it is committed negligently.26 measles.html> (last visited July 13, 2012). 7. Center for Disease Control, Manual for the Surveillance of Vac- III. Conclusion cine Prevention Diseases, Measles, Laboratory Testing, avail- able at <http://www.cdc.gov/vaccines/pubs/surv-manual/ Can parents who choose not to vaccinate their children chpt07-measles.html#laboratory> (last visited July 13, 2012). be held legally liable for any harm that results? The 8. “Placing a clear level of certainty on this is pretty difficult… I state of laboratory and epidemiological understanding would be making up percentages on this but would say 90-95% certain…assuming there was no one else the infant came into of a disease such as measles makes it likely that a per- contact with that had measles.” E. Lautenbach, “Hypothetical suasive causal link can be established between a deci- Measles Question,” email to David Hoke, April 13, 2011; “I sion to vaccinate, a failure to take appropriate precau- think the epidemiological evidence can build a strong case but I think certainty is not possible.  …if all of the epidemiological tions to isolate a non-vaccinated child who may have features pointed to the first child infecting the second, then been exposed from highly vulnerable persons, and I think the certainty of that is very high (>>95%) given that death. Liability could certainly exist if a parent simply measles is otherwise such a rare infection in the US currently.” J. Metlay, “Hypothetical Measles Epi Question,” email to David chose not to vaccinate his child and a death results. Hoke, April 13, 2011. Even if a parent chooses to not vaccinate a child under 610 journal of law, medicine & ethics  Caplan, Hoke, Diamond, and Karshenboyem 9. It should be noted, further, that Mr. and Mrs. P might like- 16. B.N., 528 A.2d at 141-43, 528 A.2d at 1178-79. wise pursue a claim for the negligent infliction of emotional 17. R. A.P., 428 N.W.2d at 107; Skillings v. Allen, 143 Minn. 323, distress, due to the personal suffering they would experience 326, 173 N.W. 663, 664 (1919). in losing their child. While such an action is certainly a viable 18. John B., 45 Cal. Rptr. 3d at 324, 137 P.3d at 159 (internal quo- option, it has no direct bearing on our argument that liability tation omitted). ought to be applied where harm has resulted from claiming a 19. B.N., 312 Md. at 142, 528 A.2d at 1179. philosophical objection to vaccination. 20. John B., 45 Cal. Rptr. 3d at 324-25, 137 P.3d at 160-61. 10. S. P. Teret and J. S. Vernick, “Gambling with the Health of 21. Id., at 325, 137 P.3d at 161 (internal quotations and citations Others,” Michigan Law Review First Impressions 107, no. 110 omitted). (2009): 110-113, at 111. 22. Smith v. Baker, 20 F. 709 (S.D.N.Y. 1884). 11. John B. v. Superior Ct., 45 Cal. Rptr. 3d 316, 324, 137 P.3d 153, 23. See Teret and Vernick, supra note 10, at 112. 159 (2006); R. A.P. v. B.J.P., 428 N.W.2d 103, 106 (Minn. Ct. 24. Prosser and Keeton on the Torts 266 (William Lloyd Prosser et App. 1988); B.N. v. K.K., 312 Md. 135, 141, 528 A.2d 1175, 1178 al. eds., 5th ed. 1984). (1988). 25. In re Christien M., 157 Misc. 2d 4, 21-22, 595 N.Y.S. 2d 606, 12. See, e.g., Hamil v. Bashline, 481 Pa. 256, 265-66, 392 A.2d 613 (N.Y. Fam. Ct. 1992). 1280, 1284 (1978). 26. Model Penal Code § 202(2)(d) (1981). 13. John B., 45 Cal. Rptr. 3d at 324, 137 P.3d at 159. 27. See Teret and Vernick, supra note 10, at 112. 14. Id. 15. Doe v. Johnson, 817 F. Supp. 1382, 1386 (W.D. Mich. 1993). conflicts of interest in the practice of medicine • fall 2012 611