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Crack Down on Those Who Don’t Vaccinate?: A Lawyer's Response to Art Caplan

EBCALAEBCALA Board Member Mary Holland wrote the following article in response to Dr. Art Caplan's editorial "Liability for Failure to Vaccinate" on Harvard Law's blog, Bill of Health. 

Please comment AT THE HARVARD blog site to widen your reach to readers: Comment at Harvard Blog HERE.


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. Dr. Caplan notes that public health officials have “tried to debunk false fears about vaccine safety.”

Yet the Institute of Medicine, one the country’s most prestigious health organizations, has acknowledged repeatedly that there are many known vaccine injuries, such as seizures from the measles-mumps-rubella vaccine, anaphylaxis from the meningococcal vaccine, and encephalitis from the varicella vaccine. Even more troubling than the identified injuries is the number of potential vaccine adverse effect relationships for which the evidence is not sufficient to either prove or disprove causality. [Committee to Review Adverse Effects of Vaccines, Institute of Medicine, Adverse Effects of Vaccines: Evidence and Causality (Kathleen Straton et al. eds., 2012).]

Dr. Caplan seems to suggest a peculiarly narrow kind of civil liability, allowing claims only by those who have been vaccinated and become sick against those who lawfully refused vaccination. What if a vaccinated person spreads disease? Presumably, she would bear no liability because she would not have been negligent. Yet vaccinated people do spread disease, as in the case of Tenuto v. Lederle Labs., 907 NYS.2d 441 (2010). Mr. Tenuto, a father, contracted paralytic polio from his infant daughter while changing her diaper after the infant had received the live virus oral polio vaccine. Although the vaccine protected the infant from polio, it exposed her father to disease through viral shedding, causing him severe, lifelong harm. Despite proven causation, industry litigated for over thirty years to avoid paying for the damages that occurred before the 1986 liability protections took effect.


And what if disease breaks out in a highly vaccinated population, with no unvaccinated person to finger? There have been numerous outbreaks of mumps, measles and pertussis with no initial cases traced to unvaccinated individuals. [See, e.g., Nkowane et al, “Measles Outbreak in a Vaccinated School Population: Epidemiology, Chains of Transmission and the Role of Vaccine Failures,” AJPH April 1987, 77, no. 4.] Presumably, Dr. Caplan would argue no liability should inure to industry because the sale of ineffective or defectively designed vaccines does not constitute negligence.

Dr. Caplan’s interest to hold liable families lawfully exercising religious freedom while letting industry have almost complete liability protection seems peculiarly asymmetrical and unjust. Overall, Dr. Caplan seems to suggest an implied duty to vaccinate on all members of society. Yet the legal foundation for such a duty is shaky, as there is no clear analogue in tort or criminal law for a duty to rescue, even if a person may do so at little or no cost to herself. [See, e.g., Ernest J. Weinrib, The Case for a Duty to Rescue, 90 Yale L.J. 247 (1980) (evaluating the case for imposing a duty to rescue).] If the common law has been unwilling to impose a duty to rescue, Dr. Caplan is likely wrong as a matter of law to suggest that civil liability is a viable work-around for limiting religious vaccination exemptions.

New York State law permits people to refuse vaccines for “genuine and sincere religious beliefs.” [N.Y. Pub. Health Law Section 2164(1)(a) (Consol.2011).] The rationale behind this is that some people have deeply held religious and ethical convictions that conflict with vaccination. Freedom of religion is the first civil right in the First Amendment to the U.S. Constitution; it is the bedrock of U.S. law and culture. Similarly, religious tolerance is a cornerstone of New York State’s historic peace and prosperity. The right to affirm a religious objection to vaccination is part of New York’s heritage. To repeal that, or to subvert it through civil liability, would be to unravel some of the bonds that hold together New York’s extraordinarily diverse society.

Concerns about infectious disease outbreaks are real, however. In the event of an outbreak, unvaccinated children must remain home from school until the outbreak subsides. Such lawful quarantines during public health emergencies respect the rights of all, including the unvaccinated.
Despite sharp disagreement about civil liability, on one important point Dr. Caplan and I agree. He notes in his post that “newborns can’t benefit from vaccines.” Dr. Caplan is correct that there is no compelling science suggesting that newborns’ undeveloped immune systems can benefit from vaccination.

Given this acknowledgement, I expect that Dr. Caplan agrees that the federal recommendation that newborns receive the hepatitis B vaccine while still in the hospital is unwise. Dr. Caplan appears to agree that the infant hepatitis B vaccine recommendation and its associated mandates are irrational and violate the Constitution’s 14th amendment equal protection and due process clauses. [See Mary Holland, Compulsory Vaccination, the Constitution, and the Hepatitis B Mandate for Infants and Young Children, 12 Yale J. Health Pol’y L. & Ethics 39 (2012).]

Dr. Bernadine Healy, the late Director of the National Institutes of Health, wrote, “Vaccine policy should be the subject of frank and open debate, with no tolerance for bullying. There are no sides – only people concerned for the well-being of our children.” [book cover blurb, Vaccine Epidemic.] In that spirit, I commend Dr. Caplan for initiating an important debate about civil liability, religious freedom and vaccination.

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Comments

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Increased disease outbreaks in "highly vaccinated" communities in the USA.They really need to look at the strain and check perhaps if the vaccine strain got incorporated into the "new
virulant strain" that is producing "more toxins".Who is checking on big pHarma??? Where are the independent Bacteriologists and Microbiologists who can investigate what is happening here??? Are these vaccines causing more harm than good??? We need more Dr.Wakefields with a spine.

Three years ago KPBS in San Diego did a series of reports about pertussis: http://www.kpbs.org/news/envision/whoopingcough/ In one of them Dr. Frits Mooi said that the whooping cough vaccine had diminished effectiveness and the pertussis organism in common circulation now was actually more virulent than vaccine strain. Both of these assertions were denied, of course, by American opinion leaders. Now it looks like at least the first is on its way to being accepted.

And then there is the issue of vaccine-resistant strains of disease organisms

*****************

All disease organisms are resistant to vaccines. Because vaccines don't really prevent disease, and they never have.

The only thing vaccines prevent is good health. If vaccines prevented disease... would it really makes sense for pharmaceutical companies to be peddling them???

Ridding the world of poor health, would literally mean ridding the world of pharmaceutical companies. And theres no way those vultures would ever do that to themselves.

Oh, and she needs to get that tetansus (aka DTaP) every three years and every time she gets a cut and goes to the Emergency room.

A doctor friend told me she had to get a Hep B shot every time she changed work places because her titers always came back not showing nothing -- so Lilady might need thos too????
My docotor friend also has a heck of a thyroid problem.

Let me see -- what else - anthrax? perhaps the colera - vaccine -- I mean you never know if a Haitian might seek refuge next door or something. Since the earthquake - they shipped in cholerea vaccine - a vaccine that even where cholera is endemic it is not recommended by those traveling there or living there - (because it causes celiacs) But heck easier to ship in celiac causing vaccine than bottles of water. So Lilady might need to take that vaccine too - just in case???

I just hope Lilady not only talks the talk but walks the walks -- and gets those flu shots every year.

And then there is the issue of vaccine-resistant strains of disease organisms circulating in the population.


"For the first time, American researchers have found evidence that the bacteria that cause whooping cough are becoming resistant to vaccines, a new study shows.

Vaccine-resistant whooping cough has previously been documented in Japan, France and Finland, according to the report, published Thursday in The New England Journal of Medicine."

http://www.usatoday.com/story/news/health/2013/02/08/whooping-cough-may-be-becoming-resistant-to-vaccines/1903439/

lilady appears to be a big pHarma insider.We have rights to do research,we have rights to protect our children,we have the rights to look at data-bases.She has not got a clue that some of us knows more than her.
Yes I hope she finds a garden and a shovel.

Apparently lilady-the matriarch of the interwebz- has taken issue with people posting their comments over at the link that was supplied:

http://blogs.law.harvard.edu/billofhealth/2013/06/21/guest-post-crack-down-on-those-who-dont-vaccinate-a-response-to-art-caplan/#more-6556

I don't know what happened to poor 'lilady', but fm, I hope 'she' finds some joy somewhere. Imagine spending your retirement spewing vitriol in the hopes of being patted on the head by whats his face. Seriously. Enjoy your pension nurse ratchet and Go plant a garden.

Herd immunity is a MYTH !!- an unproven hypothesis

Kaplan is pursuing a policy akin to a shark mandating every child should become bait.

The "unvaccinated" person has rights.Would you force feed a baby with formula when the mother provides her newborn with her breastmilk and natural antibodies??? Would you force feed a vegan with pork stew because you believe that is the standard nutrient for everybody??? As a lawyer Dr.Caplan do NOT seem to
understand the meaning of individual rights and the meaning of
individual choice. Dr.Caplan is nothing more but a legal bully.
I would like to know who is responsible for vaccine injuries?????????????
I would like to know who should pay for the chronic illnesses,
for the rising auto-immune disorders and for the rising autism?????????????
Vaccinations are lies;the population is sicker than ever. WHO predicts 50% cancer rate in the 10 years.We can thank our corporations and big pHarma for our poor health.
Yes,babies do not need vaccines.Let their blood brain barrier develop first.I also hope mothers breastfeed and protect their babies from all the aluminum,mercury and contaminants.At least I studied Immunology.

Art Caplan is such an idiot.
I am so embarrassed he is from my alma mater, BU

My whole family became sick with pertussis after our child received DTP vaccination. I think people who get sick or crippled by vaccines should sue the government and the propagandists as Art Caplan, who are the major vaccine and drug pushers and the destroyers of Americans.

Jeanette -- good points, but other forms of iatrogenic damage at least have legal remedies and public sympathy... why not vaccine injuries?

With so many similar cases in the U.S.'s VICP, VSD and VAERS, I would support compulsion to find commonalities for treatment and prevention. Relying on ethical responsibility alone hasn't been enough to compel even an acknowledgment of said injuries.

As per Arthur Caplan: In the police state he proposes, his own fingernails would regularly be subject to scraping for infection detection.


@ Jeannette
"... I also can't be persuaded that ethics are behind calls for compulsory vaccination".

Webster's defines "ethics" thus:

"The study of standards of conduct and moral judgment".

The history of the world is littered with those individuals .. (Wakefield?) .. who refused to compromise their "ethics" for personal gain.

Personally, I don't think ANYONE can rise to the highest levels of ANY profession .. (politics, public health, religious, military, academia, finance, etc) unless they have clearly demonstrated their willingness to "compromise" their "ethical" beliefs.


On the other side of Caplan's view, under current levels of mass uneducation, society remains without compulsion to rescue the vaccine injured (and others will iatrogenic injuries), and tolerates, even compels the injury, tolerates denial efforts that blame the victim, blame the parent, or blame God/nature/genes the consequences, and also tolerates and compels sometimes enslaving lifelong mainstream medical maintenance that is sold under the appellation "healthcare," and tolerates the intensive campaign to keep us as ignorant as possible of other options.

I can't argue for compulsion to rescue the vaccine injured, but without sincere efforts to prevent and recover such injuries, to at least seek to know and openly acknowledge the full extent that injury occurs, I also can't be persuaded that ethics are behind calls for compulsory vaccination.

Did that Luara

Thanks

Angus

Hi All,

Please take the extra minute to cut and paste your excellent comments here on AoA to Mary's article at its original posting site:
http://blogs.law.harvard.edu/billofhealth/2013/06/21/guest-post-crack-down-on-those-who-dont-vaccinate-a-response-to-art-caplan/#more-6556

This way, many more people will be able to read your great comments!

Thank you for providing this legal perspective. How much I learned this morning about things I never knew I didn’t know! Do the medical “experts” ever consider what they may not know? I have just purchased your book ($3 for my Kindle), and look forward to continuing to learn more.

The lack of good faith behind the present vaccination programme is demonstrated by the use of nasal flu vaccine which under normal circumstances sheds and puts the vulnerable unvaccinated at risk:

http://www.ageofautism.com/2013/05/uk-department-of-health-deliberately-exposes-vulnerable-population-to-flu-infection.html

This is completely at odds with principle of vaccinating one population to protect another (although that is dubious enough), as in the instance of pertussis vaccination. The only principle which links them is the great benefit to the industry and its cronies.

My little asthmatic gets the flu within two weeks of his classmates receiving the nasal vaccine, each year. I have been told to avoid this I must keep him out of school for 23 days. This year, and last, two children, vaccinated for varicella came down with chickenpox, I received notice because my son is on steroids which lower his immune system and can make chicken pox dangerous. Can I sue the parents of these contagious children? Or are they considered by some higher being as doing the "right" thing?

It's just more of their contemptible fear-mongering, this time fear of lawsuit if you don't get the vaxes. They could never prove that any specific unvaccinated person gave a disease he had to a presumable vaccinated one, or to a young infant. Not only is vaccine failure common, resulting in appropriately vaccinated people getting the disease they were vaccinated for, but vaccination for pertussis doesn't prevent the vaccinated person from transmitting pertussis germs, since it doesn't and can't include ACT. Since healthy unvaccinated people can spread diseases without necessarily being sick themselves, and vaccinated people can do the same, how could you ever prove that person A certainly caused the illness of person B beyond the shadow of a doubt? Could the source of the contagion of person A not also have caused the illness of person B?

My son has had both doses of the MMR. His titers test results were zero. I'm imagining that he could contract and transmit those diseases. The results are the same as if I had never vaccinated him; save for the vaccine injuries.

But let's say I hadn't vaccinated him and he contracted and transmitted measles. How would they know he would have responded positively to the MMR? It's just a guess to say these unvaccinated people if vaccinated would have protection or would protect anyone else.

I don't think these types of lawsuits would fly but perhaps we would then see the real rate of failure for these vaccines.

The problem sounds like "my child's damn vaccine did NOT work and he/she got sick"

These injury cases are ALL handled by the CDC Vaccine Court in Washington DC.

A $700 an hour pharma lawyer is waiting to testify against your child.


Thank you Mary Holland for this wonderful, cogent response. I really appreciate your work to show that there are two sides to this story and especially like the part about the Hep B vaccine at the end! Perhaps Art Caplan can pitch in to do away with that travesty.

"Dr. Caplan’s interest to hold liable families lawfully exercising religious freedom while letting industry have almost complete liability protection seems peculiarly asymmetrical and unjust."

This statement is perfect.

Bravo Mary!

Everybody, please do read:

Compulsory Vaccination, the Constitution, and the Hepatitis B Mandate for Infants and Young Children, 12 Yale J. Health Pol’y L. & Ethics 39 (2012).

The link is in the article. It will be well worth your time.

Thank you Mary for your hard work, sincerity and spirit.

Louis

Dr. Caplan should really stick to his own profession .. which I assume is medicine .. because .. his comments attempting to assign legal "liability" to unvaccinated persons reveals him to be woefully uninformed in areas of the "law" .. as well as .. "ethics".

Such as .. instead of expressing what amounts to pure "gobblygook" as a "legal" premise .. I would much prefer he expend his time and energies explaining the "medical ethics" .. as Ms. Holland observed .. of vaccinating a newborn infant .. within hours of birth .. to prevent a disease that is primarily spread through promiscuous unprotected sex .. or .. sharing of contaminated needles .. hardly the type of exposures a newborn infant is likely to experience until much older.

In the case of a blood-borne disease it might be fairly easy to tell how and by whom the disease was transmitted, but airborne it could be tricky.

My daughter and I both recently had the flu, which she seems to have picked up from a vaccinated friend, "A." I wouldn't even have thought I had the flu except that the other kid got her nose swabbed and my kid was undeniably sick. I stayed home with her, but otherwise I would have been out and about, breathing on lots of people, as I had been doing in the previous week. Wouldn't I be contagious to some extent even though I never got extremely sick? But nobody would ever suspect that they got flu from me because my symptoms were mild. And who's to say that I got the flu from my kid? Maybe we both got it from "A." Maybe we got it from someone else. Correlation isn't causation, after all. I don't even know that either my daughter or I had the flu because we didn't get our noses swabbed.

Is anybody who has symptoms, who is also unvaccinated (and who is identified) going to be assumed to be responsible if the timing is more or less right?

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