Vaccine Fanatic Says Refusers Should Be Sued By Disease Victims – Chairman of American Academy of Pediatrics Committee on Bioethics – Michigan Law Review

MB Comment: The American Academy of Pediatrics calls this ethics: Vaccinated people who get sick (vaccine failure) should sue vaccine refusers, even if there is no link of causation. The author (Chairman of American Academy of Pediatrics Committee on Bioethics) claims he is a Christian. But his religion is obviously vaccination – and he intends to impose it on everyone else.

Educated parents who believe in health freedom should read this article carefully, understand what the American Academy of Pediatrics is doing – and boycott any pediatrician who follows the so-called ethics recommendations of this vaccine fanatic.

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CHOICES SHOULD HAVE CONSEQUENCES: FAILURE TO VACCINATE, HARM TO OTHERS, AND CIVIL LIABILITY

Michigan Law Review

Douglas S. Diekema

Introduction

     A parent’s decision not to vaccinate a child may place others at risk if the child becomes infected and exposes others to the disease. Should an individual harmed by an infection transmitted from a child whose parents chose to forgo vaccination have a negligence claim against those parents? While I do not hold a legal degree and therefore cannot speak directly to issues of law, as a physician and ethicist it seems to me that the basic elements that comprise negligence claims—harm, duty, breach of duty, and causation—are met in some cases where parents forgo vaccination.

The Practice of Childhood Vaccination
The vaccination of children has proved to be one of the most effective and important health interventions of the twentieth century. With the possible exception of improved sanitation and clean water, no other intervention in modern history has impacted children’s health as significantly. Yet despite the phenomenal success of childhood vaccination, thousands of parents in the United States choose not to vaccinate their children each year. In many cases, these children can still attend public schools by taking advantage of personal belief exemptions available in many states. These parents do not represent a homogenous group: some parents may object to immunization on religious or philosophical grounds, some may object to what appears to be a painful assault on their child, and others may believe that the benefits of immunization do not justify the risks to their child. The number of parents choosing to forgo vaccination for their children appears to be increasing, in part because of the success of vaccination programs. Parents today have little or no experience with vaccine-preventable diseases like polio, haemophilus influenzae type B, or measles. This fading social memory makes the benefits of vaccination more difficult to appreciate.
Currently, the Advisory Committee on Immunization Practices of the Centers for Disease Control and Prevention recommends that children under the age of six receive vaccination against fourteen infectious diseases: hepatitis B, hepatitis A, rotavirus, diphtheria, tetanus, pertussis, haemophilus influenzae type B, pneumococcus, poliovirus, measles, mumps, rubella, varicella (chicken pox), and influenza. Vaccination against two additional infectious diseases, meningococcus and human papillomavirus, is recommended between the ages of eleven and twelve.
With the exception of tetanus, these diseases spread only from person to person. In other words, to get a disease like measles, mumps, or influenza, you must be exposed in some way to an individual who is already infected with the disease agent. Vaccination not only provides direct protection to the individual who gets vaccinated, but also eliminates that individual as a source of infectious transmission. The latter effect is important because it provides indirect protection to unvaccinated individuals by surrounding them with vaccinated individuals—a phenomenon known as herd immunity.
Herd immunity is necessary to protect those individuals who are not yet vaccinated, those who must remain unvaccinated, and those few who remain or become susceptible to disease despite vaccination. Most vaccines cannot be given until a child is two to twelve months of age. Prior to that time, these young children remain susceptible to vaccine-preventable diseases. This age group is absolutely dependent on herd immunity to protect them from infection. Additionally, some children cannot be vaccinated against one or more diseases because of medical contraindications, past allergic reaction to a vaccine, or underlying medical conditions. Further, a small percentage of vaccinated individuals will either remain or become susceptible to disease despite vaccination. These children remain at risk despite every effort by their parents to protect them from disease acquisition through vaccination, and they depend on herd immunity for protection.

Vaccine-Preventable Diseases Have the Potential To Cause Harm
All of the vaccine-preventable infectious diseases have the potential to cause death or significant disability. Some of these diseases, like measles, chicken pox, and influenza, are commonly perceived as minor illnesses that result in no more harm than several days of discomfort followed by a full recovery. This may lead some parents to question the need for vaccination against such diseases.

While severe complications are rare for most of these diseases, they can be devastating in those few who experience them. Measles, for example, causes pneumonia in 1 out of every 17 cases, encephalitis in 1 out of every 2000 cases, and death in 3 out of every 1000 cases. Otherwise healthy infants die of pertussis every year in the United States; chicken pox has been associated with devastating cases of necrotizing faciitis, or “flesh-eating bacteria”; mumps can cause infertility in males; hepatitis can cause severe liver damage; a pregnant woman who contracts rubella is at significant risk of delivering a baby with devastating birth defects; and influenza still causes thousands of deaths each year. Every one of the vaccine-preventable diseases has the potential to cause significant harm to those who get infected.

Parents Have a Duty to Avoid Causing Harm to Others

     Do parents have a duty to take reasonable steps to prevent their children from spreading infectious diseases that have the potential to harm others? In On Liberty, John Stuart Mill seemed to recognize a duty not to cause harm to others. He argued that coercive state action could be justified where an individual’s decision or action places others at risk of harm: “The only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others. His own good, either physical or moral, is not a sufficient warrant.”
Mill’s justification for interfering with the freedom of an individual has become know as the “harm principle.” Vaccination laws rely on the harm principle for their justification. State immunization programs and school mandates exist not simply because they provide a direct health benefit to the vaccinated individual, but because they protect other individuals in the community—those who must remain unimmunized for medical reasons and those who remain nonimmune despite vaccination. The existence of these “school mandate laws” would suggest that there is, in fact, a civic duty to vaccinate one’s children in the interest of protecting those in the population who remain susceptible.
Courts have repeatedly upheld compulsory vaccination laws in the United States as a reasonable exercise of the state’s police power—even in the absence of a disease outbreak. Such laws survive constitutional challenge even in cases where they conflict with the religious beliefs of individuals. In the first such case, Jacobson v. Massachusetts, the Supreme Court held that: the liberty secured by the Constitution of the United States to every person within its jurisdiction does not import an absolute right in each person to be, at all times and in all circumstances, wholly freed from restraint. There are manifold restraints to which every person is necessarily subject for the common good. While both the harm principle and Jacobson are primarily concerned with justifying coercive state action, one could argue that laws requiring vaccination of citizens exist to enforce a duty that each citizen has to every other member of the community. These laws suggest that a duty exists, even though most states provide the opportunity to opt out of vaccination on the basis of personal beliefs. The existence of the duty to avoid harming others does not cease to exist simply because one objects to the mechanism (in this case vaccination) by which states ensure that protection.
In fact, parents who choose not to vaccinate their children illustrate the “free-rider” problem—they take advantage of the benefit created by the participation of others in the vaccination program while refusing to participate and share equitably in the risks and obligations of the program. These individuals act unfairly to others in the community by pursuing selfinterest ahead of civic responsibility. Even if the community refuses to coerce or punish these free riders, they remain morally culpable in an important way.
Finally, the expectation that parents vaccinate their children to prevent harm to others is a reasonable one for several reasons. First, vaccination offers direct, demonstrated benefit to the child. Second, the safety of childhood vaccines is well established and the risk of serious side effects or complications is exceedingly rare. Finally, existing data clearly support the conclusion that the risks to a child of remaining unvaccinated, even in the United States, exceed any risks that might be attributable to vaccines themselves. Given this, placing a duty on parents to vaccinate their children is reasonable and represents prudent public policy.

Failure to Vaccinate One’s Children Constitutes a Breach of Duty
If parents have a duty to vaccinate their children, then it would follow that most situations in which a parent fails to do so would constitute a breach of that duty. There may be at least three notable exceptions to this rule. First, a parent’s duty to vaccinate a child requires vaccination of the child at the recommended time, and not before then. Second, the duty to vaccinate does not exist for those children who have specific and recognized contraindications or those who have previously experienced side effects that medical professionals agree preclude further vaccination against that agent. Finally, the duty to protect others by taking reasonable steps to keep one’s child from spreading disease is discharged when a parent has made a good faith effort to get their child vaccinated. In the event of vaccine failure– where an individual child, despite vaccination, contracts and spreads disease to another—the parents can still be said to have fulfilled their duty. Likewise, inability to pay for vaccinations may also excuse a parent from this duty. Vaccination is a public good, but not all states assure that citizens can obtain vaccination at no cost. In those states, it may be unreasonable to expect parents to fulfill this duty without assistance.

The Question of Causation
The question of causation turns on whether a parent whose child has suffered serious harm from a vaccine-preventable disease can claim that the harm is the result of another parent’s decision to forgo vaccination of their own child. In considering that question, several factors are important. First, there is little question that the harm in this case results from transmission of an infectious agent from one person to another. While it may not always be possible, when the specific person who spread disease to a harmed person can be reliably identified, establishing causation is a fairly easy task.

     While the direct cause of the harm is the infectious agent, the vector-in this case, a child—is an essential link in the chain of causation between infectious agent and a serious consequence of infection. A reasonably foreseeable consequence of failure to vaccinate a child is the possibility that the child will contract the disease and spread it to others. In this situation, were it not for the failure to vaccinate that child, the spread of disease would almost certainly not have occurred. This case for causation may be weakened if the person who has been harmed is also unvaccinated by choice. In that case, there is an intervening and more direct cause of the harm—the fact that the harmed person had forgone the opportunity to gain direct protection through vaccination. While this would not break the chain of causation, it might allow the defendant to claim contributory or comparative negligence, thus reducing or eliminating any damages.

Conclusion
I have argued that vaccine-preventable diseases can cause significant harm to infected individuals, that parents have a duty to take reasonable steps to avoid having their children spread infectious diseases to others, that failure to vaccinate an eligible child constitutes a breach of that duty, and that failure to vaccinate a child can be a proximate cause of harm to another. I recognize that negligence law may introduce important nuances into my analysis, but I would also argue that justice might demand that a tort remedy be available in this situation.
If an ethical basis for tort liability exists, it resides in providing a mechanism by which someone who is made worse off by the careless or self-serving actions of another can claim recompense for that harm. Negligence law recognizes that persons should be accountable for their decisions and actions when those decisions and actions unreasonably place others in harm’s way. A parent whose child suffers brain damage, death, or disability as a result of contact with another child whose parents chose to forgo vaccination has been harmed unfairly. While the current system in the United States has a publicly funded mechanism for compensating those injured as a result of vaccine side effects, there is no corresponding public mechanism to guarantee that a child harmed by an unvaccinated child will receive the medical care, services, and support necessary. The best mechanism for justice in this situation may be the tort system. It would be unreasonable for those who have made good-faith efforts to participate in the vaccination program to suffer harm at the hands of those who have not, without some mechanism for recompense.

Read the Article

Douglas S. Diekema, MD, MPH

He is professor in the Division of Bioethics, Department of Pediatrics at the University of Washington School of Medicine and adjunct professor in the Departments of Bioethics and Humanities and Internal Medicine at the UW School of Medicine and the Department of Health Services in the UW School of Public Health.

He is also attending physician in the Emergency Department at Seattle Children’s. He has been a member of the Seattle Children’s Hospital Ethics Committee since 1991, has served as an ethics consultant since 1993 and is chairperson of the Institutional Review Board (IRB). He serves as chair of the Committee on Bioethics of the American Academy of Pediatrics and is a member of the Ethics Committee of the American Board of Pediatrics.

Dr. Diekema is co-author of Christian Faith, Health, and Medical Practice and the author of numerous scholarly publications in medical ethics and pediatric emergency medicine.

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19 Responses to Vaccine Fanatic Says Refusers Should Be Sued By Disease Victims – Chairman of American Academy of Pediatrics Committee on Bioethics – Michigan Law Review

  1. Wayne Rohde says:

    Interesting discussion. I do believe that we should scrap the current NVICP program as it exists today. Let’s remove the immunity from lawsuit that doctors enjoy today and eliminate the same protections for the vaccine manufacturers. That will allow a simple motivation to produce and manufacture quality. Pharma will become more transparent with their studies and research and not hide important reaction research to certain subsets of the pop like Merck has done with Gardasil. Doctors will become more engaged with their patients who may have underlying medical conditions. Start there first and see what happens to the # of unvaccinated.

  2. Ped MDs are vectors too says:

    Well, then Dr. Diekema should not have any reservations with holding pediatricians legally responsible for being vectors of infectious disease transmission themselves and should wholeheartedly promote requiring AAP members to be up-to-date on each and every childhood vaccine they recommend. Because they are likely vectors of disease transmission due to their daily exposure to a diverse population of sick children visiting in their offices, they can see the benefit of making sure they personally are vaccinated with regular and frequent boosters for every communicable disease there is a vaccine for, therefore demonstrating their committment to fulfilling their ethical duty to prevent harm from the spread of infectious disease. It would also serve to reinforce with the community the pediatric medical professionals’ faith in the safety of the vaccine program they promote. As it is their scientific opinion that adverse vaccine reactions are exceedingly rare, the benefit to society of such policy would clearly outweigh any risk there might be.

    • allison says:

      I couldn’t agree more with what @Ped MD’s are vectors too….said above. You said it best!

      • Patricia says:

        I agree completely @ Ped MD’s are vectors too….. LIne up docs, maybe 10 or so vaccines at a time just to prove how safe it is.

    • Melpace says:

      I agree with you two! The doctor’s office is the nastiest place on earth to take your child and I tell my daughter not to touch anything while she’s in there if at all possible! God got it right the first time and a strong immune system that’s not all screwed up with vaccines works for us! We are RARELY ever sick and nutrition is more effective than vaccines that kill! That guy is a perfect example of an over-educated idiot! Fortunately, we have a pediatrician who understands our view on health and wellness and respects our decision to refuse! http://www.getvemmahere.com Vemma has been shown to boost the immune system in double-blind placebo-controlled randomized studies…see Clinical Studies at website.

  3. John says:

    In fact, people who do not vaccinate and get sick should be suing the drug companies, not the other way around. Drug companies, doctors, etc. in America cannot be sued for vaccine damage now because of the National Vaccine Act of 1986. We know that vaccines have caused more harm than any good. The smallpox vaccine is a prime example of this. In England there were typically about 2,000 cases of smallpox. The year the smallpox vaccine was introduced, 20,000 people got smallpox. So the government mandated the vaccine and the next year 97% got vaccinated and 43,000 got smallpox. Dr. Jenner that invented it was NOT a doctor. He got his degree from mail order from University of Scotland and paid 15 pounds for it. He went to medical school for 2 years and then dropped out. His vaccine used COW POX and he injected one boy of 8 years old. That was his total testing done. He injected his son many times. Both boys died just after turning 20 years old. Many countries got rid of smallpox without injecting a single person. It was sanitation, better hygiene, and quarantine that got rid of the disease, not a vaccination!

    Get the book “Vaccination is not immunization” by Tim O’Shea and learn the real facts before making decisions about this issue. Get educated instead of being indoctrinated like the author of this book would have you become with ridiculously fabricated facts.

  4. ottoschnaut says:

    many questionable statements in this article.
    notice that vaccinated can sue refusers, but nobody can sue the manufacturers.
    Let me be the one to say that the person who wrote this does not strike me as an impressive intellect. I wouldn’t allow him to give my kid a cough drop.
    How much money has he accepted from pharma interests past three years?

  5. TSB says:

    My favorite part was when he talked about vaccine preventable illnesses causing complications that could be dangerous. Notice that the argument has shifted from the disease itself…effectively moving the goal posts…again. Still leaning on the well worn standby of “Listen to me, you should accept the dangers of vaccines because at least it makes money for us, risking the dangers of disease profits us nothing.” And if one more “educated” ass hat spews that “vaccination saved us, you just don’t understand because vaccines have worked so well you don’t know what these diseases are like” B.S., I may vomit.

  6. Cindy says:

    So what happens when your recently vaccinated-with-a-live-virus vaccine child comes home and gives the disease to a too-young-to-be-vaccinated sibling or an unsuspecting stranger at the store? Or when your nasal spray flu vaccinated kid goes to school and gives the flu to the ones who haven’t made it to the doctor’s office for their own vaccine yet? Or when your recently chicken pox vaccinated kid hugs Grandma and gives her shingles? Jus’ wonderin’.

  7. Craigory says:

    Dr.’s that swear up and down you have to vaccinate make money off of it plain and simple. That’s the game. Dollars and cents but to vaccinate doesn’t make sense as Dr. Oz himself DOES NOT vaccinate his own children – http://techlinkonline.net/2011/10/vaccine-news-dr-oz-says-no/

  8. johnnyboy says:

    Looks like the powers that be are terrified that the vaccine paradigm is collapsing as people realize what a scam it is.

    The only way to “enforce” is to smack people over the head with the law and take away freedoms.

    Resist I say. Develop solid arguments and use those – reasonable people will see the pro-vaccine arguments don’t hold water.

  9. MA says:

    “Most vaccines cannot be given until a child is two to twelve months of age. Prior to that time, these young children remain susceptible to vaccine-preventable diseases. This age group is absolutely dependent on herd immunity to protect them from infection.”
    Incorrect. It should say: “This age group is absolutely dependent on BREASTMILK to protect them against infection.”

  10. Queda Crutchfield says:

    The man who wrote this article should stop and really read what he has said. If the vaccination gives such great protection against disease, why are these people afraid of those who choose to not vaccinate? The only reason vaccinations are being pushed so heavily is because of the money to be made by those pushing it. Sounds like a conflict of interest to me.

  11. Lizebee says:

    and yet I can’t sue the pharmaceutical company that made the hep b vaccine that injured me. Nice

  12. Doc says:

    As a physician, I can tell you this is a bunch of BS. The best protection for your children is breastfeeding, not vaccines. RESIST!!

    • tal says:

      No, no, Doc. Didn’t you know that ‘scientists’ now say we should delay breastfeeding to make vaccines more effective? To wit:

      “The lower immunogenicity and efficacy of rotavirus vaccines in poor developing countries could be explained, in part, by higher titers of IgA and neutralizing activity in breast milk consumed by their infants at the time of immunization that could effectively reduce the potency of the vaccine. Strategies to overcome this negative effect, such as delaying breast-feeding at the time of immunization, should be evaluated.
      http://www.ncbi.nlm.nih.gov/pubmed/20442687

      said the mom who nursed her eldest fro 4 years…

  13. Attorney says:

    He may be able to convince himself and other laypersons of his logic, but it would not hold up a grain of sand in the legal arena. No one can have a duty to be responsible for another person’s health issues just as one cannot hold another person responsible for their own troubles and problems. The author of this article may feel that there is a MORAL obligation, but that does not, will not and cannot create a legal obligation, especially in light of the fact that doctors and drug manufacturers do have a legal duty towards the patients, yet lobbied successfully to be shielded from any liability when harm occurs. The rest of his argument has no legs to stand on anymore. But let’s assume that his duty argument stands, breach of that duty falls apart when you try to blame a vaccinated person for spreading the disease which is more common than the other way around. Assuming that there is breach of that duty, causation would have to be established, in two parts – factually and proximately. Again, the author fails to meet these requirements, since one can do the same song and dance the medial doctors and the drug manufacturers have been doing – that is there is no link between vaccines and health injuries after getting vaccinated.
    Let’s say they can over the hurdles of all the above and get to damages. They are usually offset with contributory damages and possible benefiting from the harm. So, let me ask you, what is the price on lifetime immunity against a disease?

  14. I will add this story to the following compilation:

    “THEY are coming after your unvaccinated kids (A compilation)”:

    http://www.dailypaul.com/179504/they-are-coming-after-your-unvaccinated-kids-a-compilation-of-tyrannical-news-stories-policies

    .

  15. Susan Pearce says:

    The author claims he is a Christian. He should read Revelation 21:8, which mentions “sorcerers.” It says, “But the cowardly, unbelieving,^[a ] abominable, murderers, sexually immoral, sorcerers, idolaters, and all liars shall have their part in the lake which burns with fire and brimstone, which is the second death.”

    Russ Tanner, of http://www.herballure.com/ or at http://urlbam.com/ha/Y states that the word “sorcerers” in the above verse is derived from the Greek word “pharmakos” and that this word comes from the Greek word “pharmakon.” He says that word, according to Strong’s Greek Dictionary of the New Testament, means “a druggist (‘pharmacist’) or poisoner.”

    Mr. Tanner also shows us Revelation 18:23b, which says, “… For your merchants were the great men of the earth, for by your sorcery all the nations were deceived.” Tanner says, that*’sorcery’* as seen in Strongs # 5331, as used in that verse “is the Greek word ‘pharmakeia’ (far-mak-i’-ah). It is defined in Strong’s Greek Dictionary of the New Testament as follows: medication (‘pharmacy’)”

    On http://urlbam.com/ha/Y, Mr. Tanner gives us another revealing bit of info. He got it from someone in an e-mail, about a 1905 Webster’s Dictionary that shows that pharmaceuticals are linked to witchcraft. The e-mail said:

    “I came on your comments today re: pharmikeia and our modern drug culture called ‘medicine’ This may not be new info for you but wanted to pass along that in an old Webster’s Dictionary (1905) the connection is made to ‘witchcraft’. Yet in a 1933 Mirriam [sic] Webster’s the distinction/ connection had already disappeared!

    “from Webster’s Imperial Dictionary of the English Language – 1905-06

    “ ‘phar-ma-ceuti’ tic, phar-ma-ceu’ tic-al, a. [Gr. pharmakeutikos, from pharmakeuein. to practice witchcraft, or use medicine; pharmakon, poison or medicine; Pertaining to the knowledge of art of pharmacy, ot [sic] to the art of preparing medicines in accordance with the formulae of pharmancy.’ “

    I first found Mr. Tanner’s info at http://www.vaclib.org/links/religion.htm, which led me to the other web sites.

    Wouldn’t it be great if all people who think of themselves as Christians, Douglas S. Diekema, MD, MPH included, would realize this?

    Susan Pearce, Wyoming Vaccine Information Network, founded April 2001

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