ABSTRACT: Compulsory childhood vaccination is a cornerstone of U.S. public health policy. All fifty states compel children to vaccinate against
many infectious diseases to achieve so-called herd immunity, a scientific theory that attempts to explain how societies protect themselves against infectious disease. This Article explores both the theory and practice of herd immunity. The authors evaluate the scientific assumptions underlying the theory, how the theory applies in law, a game theory approach to herd immunity, and a possible framework for rational policymaking.
The Article argues that herd immunity is unattainable for most diseases and is therefore an irrational goal. Instead, the authors conclude that herd effect is attainable and that a voluntary vaccination marketplace, not command-and-control compulsion, would most
efficiently achieve that goal.
Our colleague Mary Holland wrote this post (below) for the Harvard Bill of Health Blog in June of 2013.
The Article takes on the bugaboo of the citizen “free rider” who is out to game the system, how a vaccination marketplace might work, and what factors policymakers must take into account in developing sound policies. The Article concludes that it is time for states to adopt more realistic and cost-efficient laws to achieve attainable herd effect, not illusory herd immunity.
Unlike measles, there is no lifelong immunity to calls for "crackdowns" like this one in the LA Times Economy Hub:
The Disneyland measles crisis: how to make negligent parents pay
Guest Post: Crack Down on Those Who Don’t Vaccinate?: A Response to Art Caplan
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....