Fighting the Anti-Vax Movement With Lawsuits

Could litigation accomplish what facts haven't been able to?

An unvaccinated child with fever is taken to a pediatrician. It turns out he has measles—and he infects a number of other patients in the office. Three of them are infants too young to vaccinate. Two of them contract subacute sclerosing panencephalitis (SSPE) a brutal, slow complication of measles that results in deterioration and death.

This incident happened in 2000 in Germany—years ago, and in another country. But the recent outbreak of measles at Disneyland has raised concerns that tragedies like this may become more common as the anti-vaccine movement continues to convince small but significant numbers of people not to vaccinate their children. Last year in the U.S. there were 644 cases of measles; in the previous decade, the average was 60 a year. This January alone there were 85 cases. Yet, despite the dangers, some parents continue to resist vaccination. And while many may just be ill-informed, or nervous about rumors they’ve heard from friends, some people have gotten antagonistic. A recent CNN report quoted one anti-vax parent dismissing the idea that he had a responsibility to the public good. "I'm not going to sacrifice the well-being of my child. My child is pure," he said. "It's not my responsibility to be protecting their child." Given this attitude, what options are there to help those whose children may be exposed to a dangerous and even deadly illness?

In a paper last year, Dorit Rubinstein Reiss, a professor at Hastings College of Law, suggested one possibility. Parents of infected children could sue.

Reiss points to the children in Germany who contracted SSPE, and the medical costs, lost work hours, and expenses the families incurred. "Nothing can fully compensate these families for the suffering they went through," she acknowledges. "However, monetary compensation can help the families rebuild their lives and prevent additional suffering from the financial, on top of the human, losses they suffered." People who fail to vaccinate their children create real, sometimes catastrophic costs when they infect others. As a matter of justice, Reiss argues, those costs should be born by those who negligently decided, against all the scientific evidence, to expose others to risk.

Lawsuits have not been widely employed so far; Reiss told me that, to her knowledge, no one has actually sued someone for infecting their child due to failure to vaccinate. But lawsuits do have some advantages.

Perhaps the biggest one is that they would be relatively simple to implement. Specific legislation authorizing lawsuits in these cases would make them easier to win, but such legislation isn't necessary, Reiss argues. It's true that many states offer exemptions for parents who don’t want to vaccinate their kids, but such exemptions don't necessarily rule out lawsuits. State legislatures didn't consider the issue of lawsuits when they created the exemptions, and "depriving a family who was harmed by another's negligence is a big deal, and deciding the legislature did it inadvertently is a big leap," Reiss told me. She added, "Actions can be legal but not reasonable. It's legal to have a stack of hay in your yard, but if it's a fire hazard and you start a fire, you may be liable … The fact that behavior is legal does not mean you're not negligent to engage in it—and if you're negligent and someone is hurt, in our system you usually have to pay."

There is good legal reason to believe that an injured party could bring and win a lawsuit for failure to vaccinate under current law, which means that lawsuits are an immediate solution, one that can be used now without waiting for the long, arduous process of creating new laws.

There are a number of barriers to a potential lawsuit. It may be difficult to prove that a given person infected another, for example. There's little provision for insurance against vaccination lawsuits, which means that the person sued may have little ability to pay. Still, Reiss says that these problems need not be crippling. Plaintiffs always have to prove cause—in a vaccine case you'd use science and evidence to make the best case, just as you would in any other suit. And if vaccine lawsuits became more common, insurance might adapt to address them. In any case, even though some plaintiffs might not be able to pay, Reiss thinks it’s still reasonable to allow complainants to sue the ones who can.

Perhaps the biggest problem with lawsuits as a policy solution, though, is that there's little reason to think that they'll actually address broader issues. A lawsuit might help one family obtain compensation, but it seems unlikely that lawsuits in general will push more people to vaccinate their children. In fact, there's some concern that lawsuits might make things worse, according to Ross D. Silverman, a professor in the Department of Health Policy and Management at Indiana University. Silverman told me he worried that lawsuits "undermine trust in the public-health system, probably won’t increase the number of people taking up vaccination, and create a dangerous precedent."

According to him, "to maintain trust and confidence in the public-health system, we need to recognize that vaccination is both an individual protection against infectious disease, and also a part of a larger process of building healthy, interconnected communities. Individuals suing other individuals is an explicit statement undermining trust in the public-health system. Furthermore, it is a polarizing and highly stigmatizing act, directly challenging peoples’ beliefs, and creating competing victim narratives … I believe this would retrench vaccination opposition across that community, rather than getting people to buy in."

There are certainly other options available to policymakers: reducing vaccination exemptions for schools, creating higher insurance rates for those who don't vaccinate, or leveling a tax or fine on those who don't vaccinate are all options. Still, it seems like it’s possible that lawsuits could be added to the mix as well. As Reiss told me, "I think probably the most important first step is to provide legislatures with viable options. States vary, different states may be comfortable with different legal solutions, and it's important to give them a menu of possibilities." If some state courts begin to uphold lawsuits, that would provide other states with some practical evidence to support or contest Silverman's worries about hardened battle lines.

And, as Reiss says, increasing vaccination rates isn't necessarily the only concern. "I think my point is an ethical one," she told me. "Whether or not this will lead to higher vaccination rates, it's fair and important to compensate families harmed because another family made a problematic choice."