I was incensed with the outpouring of opposition to the California vaccination bill. The California bill has generated intense debates pitting personal rights against public health and has stalled the vote and decisions in the Senate last Wednesday. The lawyers said that it could unconstitutionally deprive unvaccinated children of an adequate education by barring them from schools.

This measure/bill would bar parents from seeking vaccine exemptions for their children because of religious or personal beliefs, joining California with Mississippi and West Virginia in strict requirements. Actually, there are 34 states with various forms of vaccination restrictions. Medical waivers would only be available for children with health problems, forcing unvaccinated children to be homeschooled. What really got my anger was the fact that the authors of the bill, Senators Richard Pan and Senator Ben Allen who presented excellent testimony have been threatened. Sounds like a bunch of terrorists trying to force their will on the general public, especially those children immunosuppressed as well as adults after transplant surgery for their own selfish wishes. Remember, among the risks that opponents say vaccine drugs have been linked to, such as autism and other developmental diseases have repeatedly been shown by the medical community to be incorrect and that such claims have been disproved

The proposal was among several drafted across the nation in the wake of a measles outbreak that started at Disneyland in December, sickening more than 100 people in the U.S. and Mexico.

It’s generated such an angry debate that Pan has received added security. In addition to threatening messages sent to his office, opponents of the legislation have posted images online comparing Pan to Adolf Hitler.

With this recent measles outbreak in the news and politicians stumbling over their responses as working physicians deal with sick kids, let’s take a look at the medico-legal issues related to a refusal to vaccinate.

Let’s look at some of the legal issues that underpin non-vaccination. Contributors from the physician site SERMO have provided most of the following information.

Not vaccinating is a presumptively legal activity but since 1905’s Jacobson v. Massachusetts, in which the Supreme Court found that a law which required compulsory vaccination of adults during a smallpox epidemic with either imprisonment or the payment of a fine as a penalty for refusal did not violate the 14^th Amendment, it has been settled law that the government has the power to limit personal liberties as regards vaccination for maintenance of the public health.

Within the scope of that power states and municipalities have granted exemptions from mandatory vaccination for matters like school entry.  These are given for health reasons such as the child having a disease that impairs their immune system, religious claims and  (in 17 states) “personal belief” claims, which can encompass non-traditional religion or even a belief that vaccines cause autism. Only Mississippi and West Virginia grant no exemptions other than the health of the child.

It should be emphasized, though, that these exemptions only come into play when the anti-vaccinator wants their child to participate in something like attending a public school that carries a vaccination requirement.  Most anti-vaccinators therefore simply do not vaccinate and stay out of systems that require it, such as by home-schooling or placing their children in private schools that do not require vaccination.  This conduct, because it does not abridge any regulations, is fully legal.

In the settings in which the parent who refuses to vaccinate does seek an exemption or other accommodation the matter goes back to the underlying holding in Jacobson: that the state begins from a position of significant control and may use its discretion to ensure the public health even at the cost of limitation of personal liberties.

For example, in a 2012 case from Ohio a Federal district court, citing a 1944 case which held that “The right to practice religion freely does not include parental liberty to expose the community or the child to communicable disease”, ordered enforcement of a vaccination order for children despite their mother’s claimed religious objections, holding that “the mere assertion of a religious belief . . . does not automatically trigger First Amendment protections.”

In an interesting converse, in 2014 a Federal district court sustained New York City’s policy that bars unvaccinated children from attending school when another child has a vaccine-preventable disease. The families in that case had been granted religious exemptions to the City’s strict mandate on vaccinations for entry into the public schools but they then also claimed that keeping their children out of class for several weeks when there was potential exposure to chicken pox violated their  1^st and 14^th Amendment rights. Again citing the broad governmental powers to enforce vaccination-related laws upheld in Jacobson, the court held for the City in what was basically a quid pro quo for the exemption: We will admit your unvaccinated child to school but when there is a known risk to them because they are not vaccinated they must be removed.

The status of anti-vaccination, whether under an exemption or outside one, should therefore be best understood as one in which government has broad control powers that it may limitedly step back from rather than that there is a blanket right to not vaccinate.

But even if conduct is legally accepted, should it be free of wider consequence?

In 2013, in response to measles outbreaks in several anti-vaccinating communities, bioethicist Art Caplan promoted the idea that parents who refuse to vaccinate their children should be held civilly liable to those that child then infects.

He wrote: “I think there should be a right to decide not to vaccinate your child.  But, we have been far too lenient in putting up with the consequences of that lousy choice.  If your kid gets the measles, and remember public health officials are getting very good at tracing outbreaks to their source, and makes my kid sick (can happen since vaccine is not 100% effective), my newborn baby die (newborns can’t benefit from vaccines) or my wife miscarry (fetuses are at especially high risk), then shouldn’t I be able to sue you for the harm you have done?…I can choose to drink but if I run you over it is my responsibility.  I can choose not to shovel the snow from my walk but if you fall I pay.  Why should failing to vaccinate your children or yourself be any different? When the subject is vaccines a tiny minority continue to put the rest of us at risk.  We are willing to let them choose to do so without penalty.  That should change.  If I know you or your kid made mine sick because you chose not to vaccinate then you should bear full responsibility for the harm you knew or ought to have known could happen.”

There are, however, two serious problems with that proposition:

• The essential predicate for tort liability – a duty owed to the injured individual – is lacking in these cases. A duty runs from the anti-vaccinator parent to their child and that is why abuse charges can and have been brought against parents who do not vaccinate (albeit that few are successful) but there is no general duty running from that parent to members of the public. Caplan has cited decisions that find a duty of a person infected with a contagious disease to take steps to avoid spreading it but those cases are about a duty to an intimate partner as far as an STD, not to the general public about an airborne virus.
• Unlike drunk driving, which is inherently illegal, and not clearing your sidewalk, which is likely an ordinance violation, non-vaccination is legally permissible conduct. As long as the non-vaccinating parent stays within any limiting laws on the matter, such as on school attendance, their conduct could not be held to be a breach of a duty to the public because they would be, by definition, operating within the very limits the law sets.

Caplan also believes that there should be criminal liability if the transmitted infection causes the death of the person the unvaccinated child infects.

This approach would regard the non-immunized child as a passive vector for the disease to the victim with the responsibility for preventing that resting on the parent just as it would if a child below “the age of reason” and so unable to form intent personally picked up a gun and shot someone because they were not being properly supervised.

Since the risk of wider infection is not just known to anti-vaccination proponents but is actually a linchpin of their arguments that these infections are natural and may even be immunologically beneficial, a criminal charge would be based in reckless disregard for a known risk. In other words, the anti-vaccinator may think that getting measles is fine but they are aware of the risk of getting it and so would be culpable for what they set in motion despite that knowledge.

This was actually the plot device for an episode of Law and Order SVU.  A mother who did not vaccinate her young son was criminally charged when he infected an infant too young to be vaccinated and the infant then died.

However, even in the hands of a screenwriter that case ended in an acquittal because the fact remains that non-vaccination is state-sanctioned through exemptions and is not inherently illegal even outside these exemptions, unlike leaving loaded guns near unsupervised small children is.

An argument that to act in accordance with what a government specifically permits when it grants an exemption and chooses to not prosecute even when there is no exemption is to engage in conduct that is so reckless that it can underpin a criminal charge is frankly not going to go very far.

There should therefore be no present expectation that civil liability to members of the public will attach to parents who do not vaccinate or that there would be a successful criminal conviction for a death due to infection by an unvaccinated child.

The situation in your office, however, is the opposite.  There, the scales tip against the anti-vaccinators and that is where we will pick up next week.

Physicians out there, what are the legal aspects of what you can do in your own practice, and these do favor you insofar as you have the choice of how to run your practice?

Those of you who are employed and do not have binding discretion over accepting or keeping patients who will not be vaccinated can also use these principles in presenting the matter to your administration when the issue comes up.

In dealing with an anti-vaccinator you can start from the fact that it is solely your option as to whether you take on or retain patients who will not be vaccinated.

In fact, this choice stems from a dual duty – your direct duty of care to the child patient, which would be violated if you agreed to practice on them in a manner that you deem inherently negligent by going along with not vaccinating them, and your duty as a proprietor of the office to provide a safe environment for employees and for invitees, which include other patients, their families, and business visitors who may be vulnerable to infection transmitted by the unvaccinated child.

The fact that there may be statutory exemptions granted for matters such as public school registration does not bear on your choices for your personal practice.

It is also important to understand that while your office may be deemed a place of public accommodation for the purpose of non-discrimination statutes that it is not a violation of someone’s religious rights to refuse to have them in your practice based on their unwillingness to vaccinate.  This is because you are not discriminating based on their faith itself, which would be impermissible, but are merely stating that a specific conduct that their faith dictates is not congruent with your practice of medicine, no different than if they wanted to dictate that certain medications that you feel that you need to be free to prescribe as needed were theologically unacceptable to them or if they insisted that they be allowed to conduct a religious ritual in the consulting room.

When a new call comes in your receptionist should state from the outset that yours is a practice which requires participation in vaccination as a requisite for acceptance and this fact should be on your website as well. You should also inform any referrers.

Of course, if you discharge based on a refusal to vaccinate the usual caveats about abandonment will apply:

• You will need to provide interim emergency coverage as mandated by your state (usually 30 days).
• You cannot discharge the patient during a period of active treatment unless another practitioner is directly taking them on for continuity of that ongoing care.
• If there is no practical alternative to you (e.g.; you are the only pediatrician in a rural area or you are the only pediatrician who accepts their payor) discharge may be able to be construed as constructive abandonment so you should check with your state medical board first about those cases.

Your discharge letter should give the reason.  While it is true that you are free to end the physician-patient relationship for any reason because it is a contract to which consent must be bilateral and that you do not have to state what your motivation in terminating the patient is, there is no point in being coy here because they will all inquire.  Since anti-vaccinators can also be very troublesome, particularly when they activate their on-line communities, you are therefore best off with a letter that fully states the matter, as you want it stated.

“As of (date) it will be the policy of this office that participation in vaccination protocols, except where medically contraindicated due to specific conditions such as immune compromise or allergies to vaccine components, will be a requirement for retention in the practice.

This is not a decision that was made lightly but it is my belief as a physician, based on overwhelming medical evidence, that vaccination is a safe and essential aspect of proper pediatric care and, given the increasing numbers of outbreaks of vaccine-preventable conditions, I must also consider my obligation to provide a safe office environment for other patients and visitors.

As you have thus far refused vaccination for your (child/children) I will therefore regretfully be discharging them from the practice as of (date).

As required by the state, this office will remain available for emergency coverage for (statutory period) but you are urged to seek alternative care as soon as possible.  When you have done so please contact the office if you wish to obtain a copy of the medical record.

If you wish to begin vaccinations for your (child/children), please inform us.”

The important points here are that:

• You want to specify examples of medical conditions that you consider valid reasons to not vaccinate to cut off claims about autism.
• You want to make clear that this is not punitive – you are practicing medicine as you deem appropriate, your concern includes other patients and you will be happy to retain the kids in your practice if their parents no longer refuse vaccinations.

An increasingly common issue to consider is the problem of families in which there is disagreement over vaccination between separated or divorced parents. In these cases your office cannot become their alternative battleground and of course you cannot interpose your own preference.

Physicians need to have them provide a copy of any Order governing custody and medical decision making to your office and then follow it:

• If the pro-vaccination parent has the legal authority to make the medical decisions then you may vaccinate on-schedule and the anti-vaccination parent’s alternative would be to go to court to get an Order to block that.
• If the anti-vaccination parent is in control on this issue then you have to follow their instructions or terminate the family from your practice if you do not want to support anti-vaccination, but you cannot go around them by getting consent from the other parent. You can, however, indicate that if the pro-vaccination parent wants to seek a modification of the situation from the court that you are willing to provide an affidavit or be a witness in that process.
• If the role of medical decision-maker is actually equally split you do not get to be the tie-breaking vote. You should instead inform them that you are unable to act on either of their requests and that they will need to go back to the court to get this resolved.

The final point to look at in this topic is your own liability as a physician and on this all of us should not have serious concerns.

The duty of you the physician is to your patient – the child – but your permission to treat comes from the parents. You cannot vaccinate if they disagree.  This limits you to not vaccinating or dismissing the family from your practice, as I discussed above.

If you dismiss them and avoid abandonment you face no liability.

If you do however decide to retain them in the practice and to not vaccinate or you have to do so because you are employed by a facility or practice that requires it then your concern is to cut off a “buyer’s remorse” situation when the child becomes seriously ill or seriously infects a family member who was foreseeably at risk and the parents then sue you for malpractice, claiming that they were not adequately informed of the consequences of not vaccinating and so did not validly consent to it.

Your records should therefore clearly reflect (1) that the non-vaccination was at their request, and (2) that you discussed the matter fully with them, including risks to the child and to others in the family (including noting specific vulnerabilities such as infancy, old age, pregnancy and immune compromise).

However, do not floridly go on about how terrible an idea you think that non-vaccination is and how irresponsible you think the parents are because you cannot transfer your duty of care to a patient or their guardian. Your obligation if you felt that strongly was to not cooperate at all in what you deemed improper care.

You have no liability to the general public in this regard so someone who can trace his or her infection back to your unvaccinated patient cannot sue you.

Of course, if the doctor themselves is the anti-vaccinator they can be sued for malpractice if the patient or a foreseeable third party suffers harm as a result.  The issues would then be (1) whether the parents were adequately informed of the risks of not vaccinating so as to consent validly and (2) whether not vaccinating meets the Standard of Care. The former is a matter that will have to be proven by the records, as discussed above, while the second is going to be a Battle of the Experts and will actually be the linchpin issue because if care is inherently negligent that it was consented to is not a defense to a malpractice claim because, as noted before, the duty of care cannot be passed off to the patient or their guardian.

But more important, at least when I consider the objective or goal to a great health care system is whether vaccinations improve the overall health of the majority of our population. The recent events such as the measles outbreak that began in Disneyland last December has proved that the community immunity is weighing to dangerously low levels due to an over decade of increasing use of the personal belief exemption in too many schools. Imagine if we didn’t have the Salk vaccine for polio and the many patients previously in iron lungs due to neurological infection and paralysis. More dramatically, imagine if we were talking about an outbreak of Ebola and we had a working effective vaccine against it, I don’t think anyone would object to inoculations.

Wake up America.