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If Your Child Is Harmed Because Someone Else Didn’t Vaccinate Theirs, Can You Sue?

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Over 154 people in 17 states are sick or were recently sick with the measles in an outbreak that has been traced back directly to Disneyland, and public officials warn that the outbreak is only going to grow, according to a report in Forbes. The outbreak is alleged to have begun with parents who chose not to vaccinate their own children.

Vaccination Rate Declining

The U.S. has had a vaccination rate of over 90 percent for decades, but the rate of unvaccinated people has been steadily growing in the nation, particularly in California, where approximately 13 percent of young children are unvaccinated. It has been estimated that unvaccinated people are 35 times more likely to contract and transmit measles than vaccinated individuals.

Measles infects approximately nine of every 10 non-immune people who come into contact with it, and it is spread when it reaches a community where groups of people are unvaccinated. The disease is airborne and remains active for up to two hours after an infected person leaves the area, meaning that measles spreads quickly and easily through a population that isn’t immune or wasn’t vaccinated. Among those not vaccinated for measles, each person will transmit the disease to 12-18 other people.

A Parent’s Choice Whether or Not to Vaccinate

The reasons people choose not to vaccinate their kids are many:

  • They want to live a natural lifestyle and reject modern drugs and vaccines.
  • They object for religious reasons.
  • They fear that vaccines cause medical complications like autism.
  • They lack health care, misunderstand the importance of vaccination, or simply don’t make time to have it done.
  • Their child has proven medical reactions to vaccines or compromised immune systems
  • They had their child vaccinated, but because vaccination isn’t 100 percent effective, it didn’t take. This was the case with at least five people infected at Disneyland who had received the measles vaccine.

Parents have the ability to obtain vaccination exemptions, although the specific requirements vary by state. Some state legislatures are trying to make it easier for parents to get an exemption, but all 31 bills introduced between 2009 and 2012 that would have made the exemption process easier have failed, while three of five bills written to tighten exemption requirements have passed.

Can Those Who Choose Not to Vaccinate be Held Liable?

According to Arthur Caplan, director of the Division of Medical Ethics at New York University, unless there is a health reason certified by a physician that they should not vaccinate their children, all parents have a duty to prevent harm to their children and others by vaccinating.

There have been a number of lawsuits brought over the failure to vaccinate, with some resulting in substantial settlements. To establish a case for negligence, the plaintiff must demonstrate that:

  • The defendant owed him a legal duty
  • The defendant breached that duty
  • The breach was the direct and proximate cause of the harm suffered
  • The plaintiff suffered damages

According to Caplan, case law supports a need to manage the incidence of infectious disease, including measles, by requiring individuals who knowingly have a communicable disease to take reasonable precautions to prevent its spread. Following this theory, although a parent may not have had actual knowledge that her child had measles when he came into contact with another child, the parent did know that her child had not been vaccinated and therefore has a duty to take further steps to protect the health of others.

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