Day on Torts
In case you have been living under a rock and have not heard, there are at least 121 confirmed cases of the measles traced from an outbreak at Disneyland in California in December. The outbreak is significant for a number of reasons:
1. Last year, the U.S. had a record number of measles cases since the virus was officially declared eliminated in 2000.
2. Health officials including the Centers for Disease Control and Prevention are linking the current outbreak to non-vaccinated individuals;
3. Parents who do not vaccinate their children typically do not do so for fear of side effects.
4. Unvaccinated children pose a threat to others especially those who cannot be vaccinated because either they are not old enough (must be at least 1 year of age) or because their immune system is compromised due to serious illness such as cancer.
5. Measles is highly contagious and can be fatal especially for children under 5 years of age.
Given these facts, let’s set up a hypothetical. You are a parent of an 8 month old baby who, because of its age, is unable to be inoculated against measles. Your 8 month old goes to the same daycare as a 5 year old child who has not been vaccinated. No medical issue prevents the 5 year old from being vaccinated. Rather, the parents of the 5 year old choose not to inoculate their child out of a fear of possible side effects. The 5 year old returns from a trip to Disneyland with his parents and unknowingly unleashes measles into the daycare. (Symptoms of measles typically do not appear for 10 to 14 days after exposure to the virus). Under these facts, can you and your child recover damages from the parents of the 5 year old if your 8 month old contracts measles? Can you and your child recover damages from the daycare?
The answer is: it depends. Certainly, there is precedent for holding an individual responsible for negligently spreading an infectious disease. One of the most common situations involves herpes. Typically, the herpes cases involve the infected individual failing to advise a new lover that they have herpes and then transmitting the disease to the new lover. In the herpes cases, because the infected individual has knowledge of their condition, courts have found they have a duty to warn sexual partners in advance so that the partner can either consent to the risk or avoid or protect against the risk of transmission.
Something in the deep recesses of my mind tells me that there is also some case law from other states that address the communicable disease issue in the context of negligently transmitting tuberculosis.
Back to our measles hypothetical. Unlike the herpes cases in which the infected individual is aware that they have herpes because of prior open lesions, measles has an incubation period of 10 to 14 days after exposure. And according to the Mayo Clinic, the communicable period is 4 days before any rash appears and ends when the rash has been present for four days. So the 5 year old child could be symptom-free when her parents first return to her to daycare only to develop symptoms afterwards, which means the child could be spreading the disease before the parents would be on actual notice of a measles infection.
Courts would have declare that that even without knowledge that your child has been infected with the measles, parents who choose not to vaccinate their children can be held liable if their unvaccinated child contracts the measles and passes the virus on to another child. Or, in essence, that parents have a duty to vaccinate and, if they choose not to do so, they are responsible for any damages flowing from the decision. A physician’s recent article summed up the argument that would be made by the plaintiff’s lawyer in arguing that a duty should be imposed:
Getting vaccinated involves an element of social responsibility. The strength of our public health is reliant on a web of mutuality. When we drive sober and at the speed limit, or when we ban smoking in public places, we are doing the basic but important work of keeping each other safe and healthy. Vaccinations are an integral part of that process, and no one should have to suffer from preventable diseases. As much as anti-vaxxers may think they are exercising their right to choose, they do not have the right to put others at risk. (The full article can be read here.)
Of course, if the parents sent the 5 year old to school knowing the child was infected with the measles, the duty issue because easier to resolve (although the parents would argue that not withstanding the foreseeability of harming others there was a legitimate public policy reason not to vaccinate their child and therefore a duty should not be imposed).
This brings us to causation. It will be necessary to establish not only duty and breach of duty but also cause in fact, i.e. the 5 year old in daycare with your 8 month old was the source of the infection. (There is also the legal cause issue, but my guess is that issue will be resolved in the same way as the duty issue). If there are no other reported cases in the State of Tennessee and you have not been traveling with your infant, then causation will be relatively easy to establish. On the other hand, if there are multiple outbreaks in the State of Tennessee or if your child has been traveling with potential exposure from other sources, then causation is going to be trickier and more like the herpes victim who has had multiple sexual partners.
As for the daycare itself, state law requires child care facilities and schools through 12th grade to obtain proof of immunization, as specified by law, prior to enrollment. Of course, the regulations provide for exemptions if a qualified medical provider finds that the vaccine is contraindicated for a child based on their medical condition or if the parent or guardian provides a sworn statement that the vaccination conflicts with their “religious tenets and practices”. If the daycare or school admits a student who has been exempted, should the daycare be required to notify the parents of all other students that there is a child in the school who has not been properly vaccinated so that parents can assess the risk and take whatever action they feel is necessary to protect their child? Or, even in the absence of that duty, the duty to warn other parents in the event that it learns that the non-immunized child has traveled to a location with an outbreak of measles?
Lastly, there is the issue of the ability to collect damages. As for the daycare, presumably it has insurance coverage to cover the damages arising from improperly enrolling an unvaccinated child who later triggers a measles infection or failure to warn. In addition, the parents of the 5 year old may have homeowner insurance which provides indemnity for this type of action that results in harm. If there is no insurance coverage, it will, of course, be necessary to determine if the parents have any assets which might be used to pay for the damages caused by their acts and omissions.
While it would be personally satisfying to sue for any and all measles infections caused by ‘the decision of irresponsible parents who choose not to vaccinate their child without an appropriate medical reason, the cases are just too complex for that to make sense in cases where the affected child is quickly cured. That said, if the injuries are serious or if death results, then a strong argument can be made fault should be squarely placed on the vaccine-cynic parents who unnecessarily endangered the health and welfare of others, especially young children. Likewise, day care centers that refuse to follow state law or fail to warn other parents that an at-risk child is placing all children in the facility at risk should also be held responsible for their decision. Know, however, that getting involved in such a fight, especially against the anti-vaccine parents, will likely involve the need to make new law on the duty issue.