A big story making the news these days is parents who choose not to vaccinate their children, and how that choice affects others. While many would say that parents have the right to make choices for their own children, a big issue with failing to vaccinate your children is how that affects other children whose parents may want to vaccinate, but can’t for some other health reason. (For a nice visual breakdown of how vaccines work, herd immunity, etc., check this out.) While states require children to be vaccinated, some states allow exemptions for parents who don’t personally believe in vaccinating.
On the legal side of this issue (which is all I’m covering in this post), I’ve heard/read some discussion of whether or not parents who lose a child (who could not be vaccinated for some health reason) to a disease because he or she came into contact with a child who had/carried the disease (and was not vaccinated because of the parents’ personal beliefs) could sue the parents of the unvaccinated child, and/or the state that allows exemptions for personal beliefs. So here’s my breakdown on whether such a lawsuit is possible and provable.
Any lawsuit against parents who won’t vaccinate their kids and/or a state that allows parents not to vaccinate based on personal belief would be a negligence case. Negligence is an unintentional tort defined as failing to exercise the care toward others which a reasonable prudent person would in the circumstances. In plain English: Generally, as we make our way in the world, we must exercise care in our dealings with others. In a very simple example, imagine yourself walking down a sidewalk. You’re expected to be reasonably aware of your surroundings. You’re expected to avoid running into others, going on property that isn’t yours, harming others, etc. That expectation is the reasonable care we’re all supposed to take as we go through life. And if you fail to use that reasonable care and harm someone or something, you can be held liable for that failure.
In order to make a claim of negligence, a plaintiff must be able to prove four elements: 1) duty of care, 2) breach of that duty, 3) causation (both actual and proximate), and 4) damages. Let’s go through those elements and apply them to a case against parents who don’t vaccinate their children based on personal belief, and states that allow personal belief exemptions to vaccination laws.
1 – Duty. The plaintiff must first establish that the defendant owes a duty of care to the plaintiff, measured by the reasonable person standard (again, the degree of care and skill that a reasonable person would exercise under similar circumstances). Here, it is likely that a reasonable person would vaccinate his or her child, as evidenced by scientific proof of the effectiveness of vaccination and laws requiring vaccination, thus the parents would likely owe a duty of care to other children. And since the state put laws in place to require vaccination presumably to protect children from disease, it also has a duty of care to the children of the state. (Note also that there may be a duty of disclosure here for parents who choose not to vaccinate their children.)
2 – Breach. The plaintiff must next establish whether the defendant’s conduct violated that duty of care. Here, the parents made a choice based on personal belief not to vaccinate their child, thus there was a likely breach of duty. It could also be argued that the state’s exemption from vaccination laws for parents who don’t believe in vaccinating, if loose (i.e., not requiring the belief to be religious or otherwise constitutionally protected), as many of them are, is a breach of the duty of care toward the children of the state.
3 – Causation. There are two types of cause that must be present for the plaintiff to prevail on a negligence claim: Actual cause (cause in fact) and proximate cause. Actual cause exists when the defendant’s breach of duty directly resulted in the plaintiff’s injury. Here, if the parents’ and the state’s breach of duty directly caused the loss of a child, actual cause would be present. Proving this may be difficult, depending on the situation, as causation of illness often has many factors. Proximate cause exists when the plaintiff and the plaintiff’s damages are reasonably foreseeable at the time the defendant breached his or her duty to the plaintiff. Here, since scientific proof and vaccination laws are evidence that vaccination prevents certain diseases, it is reasonably foreseeable that a child who can’t be vaccinated for health reasons may be harmed by contact with a child who was not vaccinated because of his or her parents’ beliefs, so proximate cause may be present.
4 – Damages. The plaintiff must have sustained compensable injury as a result of the defendant’s actions. In this situation, the parents who lose their child have clearly been damaged.
You may wonder if you can hold the parents or the state liable, even if they didn’t know they were exposing a child who could not be vaccinated for health reasons to a child who isn’t vaccinated because of the parents’ personal beliefs. The answer is yes. As I often remind my students when we discuss negligence, you take your plaintiff as you find them him or her (the Eggshell-Skull Rule).
You also may argue that a strongly held personal belief against vaccinating is a personal choice that every parent should be allowed to make themselves. To that, I paraphrase a quote that comes from any number of sources: A person’s rights end where someone else’s begin. If it harms others, a personal choice is no longer simply personal.
So, do parents who choose not to vaccinate their children based on personal beliefs have potential liability for that choice if it harms another? Yes. If causation can be proved, it’s possible such parents could be sued for negligence. How about states that have relatively loose personal belief exemptions for vaccinations, do they have potential liability? Yes, again if causation can be proved.
Notes:
*While in this post I have used the example of the parents of a child who cannot be vaccinated for health reasons as the plaintiffs, of course there are other people who could be harmed by exposure to a child who has or carries a disease because he or she is unvaccinated by the personal choice of the parents.
*While I have opinions on vaccination, I don’t expound on them here. This post concerns legal issues only.
The DL Legal Breakdown 