Sunday, February 08, 2015

Holding Unvaccinated Households Civilly Liable for Transmitting Pathogens Would Incentivize Vaccination

Stuart K. Hayashi

Instead of having command-and-control mandates forcing everyone to be vaccinated, I think individuals should be able to be held civilly liable if they transmit diseases that they could have been vaccinated against.

For example, if I refuse to have my household vaccinated for measles, and then my child contracts measles and inadvertently transmit it to your child, that is an inadvertent initiation of the use of force against your household, just as it would be if I drove recklessly and hit you with my car. Therefore, you should be able to file a lawsuit against my estate for damages, such as the medical expenses my household's transmission of measles imposed on you.

And having been vaccinated would serve as a legal defense. That is, if someone was vaccinated for measles and I tried to sue that person's household anyway for having transmitted measles to my child, the respondent could defend against my suit in court by pointing out that his or her own household has already been vaccinated. Therefore, we wouldn't have a command-and-control mandate forcing vaccination but vaccination would still be incentivized.

Some people have told me that they don't like my idea because it's too difficult to prove Person A transmitted a specific virus to Person B. But bioethicist Arthur Caplan has pointed out that officials at the CDC are actually improving in the ability to pinpoint the source of an epidemic.

It might be difficult for them to prove who gave who the flu, but they have identified Patient Zero in the case of the Disneyland measles outbreak and they have identified Patient Zero in the case of the recent ebola outbreak. Therefore, as Dr. Caplan has argued, this idea has more scientific plausibility than critics are giving it credit for .

Now, when it comes to liability, there is an issue of whether the exact person who transmitted the pathogen is a minor or legal adult.  If I refuse to have my kid vaccinated for measles, and my kid gives another kid measles, then, as long as my child remains a minor, I am the one held liable. However, if my kid was never vaccinated, and then grows into an adult and gives measles to a kid, then my son or daughter -- now being an adult -- is the one who can be held liable.