Vaccination Decisions Have Legal Repercussions, Not Just Medical Ones

New Year’s Day 2016 was more than a day to make resolutions. In California, Senate Bill 277 took effect, under which only medical exemptions to required immunization will be allowed for students entering school after January 1, 2016. California no longer permits immunization exemptions based on personal beliefs for children in childcare and public and private schools. The language of SB 277 is available on the California Legislative Information website.

See also the Governor’s signing message.

Refusing to immunize children has medical repercussions beyond the child who did not receive the vaccination. The result is a reduction in “herd immunity.” According to the CDC,  “herd immunity,” scientifically referred to as “community immunity,” is a situation in which a sufficient proportion of a population is immune to an infectious disease (through vaccination and/or prior illness) to make its spread from person to person unlikely. The small number of people who cannot receive vaccinations for medical reasons (such as newborns and those with chronic illnesses) are offered some protection because the disease has little opportunity to spread within the community. For example, medical experts say that between 92% and 95% of children should receive two doses of the measles, mumps, and rubella (MMR) vaccine to maintain herd immunity against measles. A CDC report on vaccination coverage among children in kindergarten during the 2014 to 2015 school year found that out of 49 reporting states and the District of Columbia, seven areas had under 90% coverage with two MMR doses. The report noted that although statewide vaccination coverage among kindergartners was high during the 2014 to 2015 school year, geographic pockets of low vaccination coverage and high exemption levels can place children, and people who cannot receive vaccinations for medical reasons, at risk for vaccine-preventable diseases.

Refusing to immunize children also has legal repercussions. At least one legal scholar argued that refusing to vaccinate a child creates liability when it affects the health of children and people who cannot be vaccinated for medical reasons. Parents may lack an opportunity to choose to immunize their child if the child has ever experienced an allergic reaction to a vaccine, a compromised immune system, or a history of seizures—factors that would counsel against the administration of vaccinations.

An obvious legal practice area for issues regarding immunization is in the sphere of family law. For example, in Kagen v. Kagen, 2015 WL 4254993 (Mich.App., July 14, 2015) (not designated for publication) divorced parents disagreed about whether to update their children’s standard vaccinations. The mother refused to update the children’s vaccinations. The father filed a motion with the trial court seeking to update the children’s vaccinations.

The trial court denied the father’s motion to update the children’s vaccinations, determining that the father had not met his burden of proving that vaccination was in his children’s best interests.

The Court of Appeals of Michigan reversed. The court held that the trial court erred in admitting many of the mother’s documents despite their lack of trustworthiness, and the admissible evidence before the trial court established by more than a preponderance that updating the children’s standard vaccinations would be in their best interests.

The evidence the court found that established that updating the children’s standard vaccinations would be in their best interests included both widely available information and specific information about the children involved in the case. The court relied on information from the CDC, FDA, NIH’s National Center for Complementary and Alternative Medicine, and the National Vaccine Program Office. Regarding the specific children involved in the case, the court relied on a letter from their pediatrician that recommended vaccinating the children and clearly enumerated which vaccinations the eldest daughter had yet to receive and were recommended specifically for her. The court noted the absence of factors that would counsel against the administration of vaccinations, such as that the children had ever experienced an allergic reaction to a vaccine, had a compromised immune system, or a history of seizures.

Whether crafting health policy or litigating family issues, consider the legal repercussions of a refusal to vaccinate.

By Sarah Kelman, JD, and the experts and editors at Medical Law Perspectives.

For more details about Kagen v. Kagen, 2015 WL 4254993 (Mich.App., Jul. 14, 2015)(not designated for publication), see the Scalpel Weekly News, July 27, 2015.

See also Medical Law Perspectives, August 2015 Report: Pediatrician Liability Involving Diseases and Conditions of Childhood

See also Medical Law Perspectives, January 2013 Report: Vaccines: An Ounce of Prevention May Lead to a Pound of Injury

See also Medical Law Perspectives, April 2013 Report: Complementary and Alternative Medicine: Practitioner Liability

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The content of this blog is provided for informational purposes only, and does not constitute legal advice.
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