If Parents Are Free Not to Vaccinate Their Kids, Then I Should Be Free to Sue Them

Baxter put forth a real-world example in which parents could be held liable. In 2008, an American family took their unvaccinated 7-year-old to Switzerland, where measles was endemic at the time. The boy returned to the U.S. with a fever, sore throat, cough, and eye inflammation. Three days later, he attended school. The next day, he developed a rash and subsequently ran a fever of 104°F. Testing soon revealed that he had measles. Over the next three weeks, five children in his school and four additional children who had been in the pediatrician’s office when he visited came down with measles, including three infants, one of whom was hospitalized for two days.

“The parents of the ‘index patient’ presumably chose not to immunize their child and then chose to travel with him to a country where measles is still endemic. After he was infected and symptoms of measles were present, he was taken or allowed to go to places where other vulnerable people were present and were infected. Arguably, these actions breached a duty of care that the parents owed to those persons, and those infected by the boy should be allowed to recover in tort for their injuries,” Baxter reasoned.

To be clear, Baxter only thinks that anti-vaccine parents should be liable if they are negligent or fraudulently conceal a child’s illness, which then results in other people getting sick.

“The choice not to vaccinate will only result in liability if—in addition to refusing to vaccinate his or her children—a parent fails to exercise due care in a way that harms others,” Baxter wrote. “For example, if the parent takes the child to a country or area in which vaccine- preventable diseases are common, or if the child shows symptoms of a contagious disease, and the parent takes the child to places where he or she is in contact with others, those actions taken together can give rise to a duty to warn or otherwise act for the protection of others.”

In many ways, the legal case here mirrors that made in the involuntary manslaughter conviction of Jennifer and James Crumbley, whose 15-year-old son Ethan used a gun his father purchased for him to murder four of his classmates. The Crumbley’s negligently provided Ethan access to a firearm, ignored signs of their son’s troubled mental state, and left the gun unsecured. Parents who choose not to vaccinate their kids, then fail to recognize symptoms of vaccine-preventable diseases, then place their sick kids in situations where they could spread disease to others, are also negligent – not criminally, but certainly civilly. 

Perhaps the most difficult part of winning a future case of vaccine negligence will be identifying beyond a reasonable doubt the source of an outbreak, Baxter wrote. Though she added that it’s certainly possible. “Since transmission requires close contact, the plaintiff may be able to narrow down possible sources of infection and, with some deductive reasoning (and, perhaps, a lot of luck) a likely source can be identified. Discovery requests can then be used to fill in some of the gaps.”

There’s also the matter of which vaccines parents might be considered liable for refusing. Seasonal influenza, HPV, and COVID boosters? No. Vaccines that are part of the childhood schedule, which have been routinely given for years with incontrovertible proof of safety and efficacy? Yes. We’re talking Hepatitis B (HepB), Diphtheria, Tetanus, and Pertussis (DTaP), Haemophilus influenzae type b (Hib), Inactivated poliovirus (IPV), Pneumococcal conjugate (PCV), Rotavirus (RV), Measles, Mumps, Rubella (MMR), Varicella (VAR), Hepatitis A (HepA).

In all likelihood, civil cases against parents who choose not to vaccinate would be rare. But the real threat of litigation would factor into parents’ personal calculus when deciding to immunize their children. It would bring fairness to an era of health uncertainty – where diseases like measles, polio, and whooping cough return due to the selfish decisions of a misinformed minority.

“Those who find themselves with thousands of dollars in medical bills due to an illness contracted because of contact with an unvaccinated child are forced to bear the cost of another parent’s decision. Allowing liability if the illness is due to carelessness or recklessness simply places the financial burden on the shoulders of the morally responsible party,” Baxter wrote.