Doctors’ vaccine liability and autism

Doctors’ vaccine liability and autism

In a recent blog post, anti-vaccine activist Ginger Taylor criticized doctors for calling out Donald Trump for his misleading comments about vaccines and autism. Ms. Taylor claimed that doctor’s are immune from vaccine liability and that because of that they have no right to criticize. With a few exceptions where her claims were only incomplete, her claims are simply incorrect.

Doctors’ vaccine liability

 

The one place where Ms. Taylor’s claims have something to them is that doctors’ liability is limited – though not removed – under the National Childhood Vaccine Injury Act. But that’s not why she would not be able to sue a doctor for alleged vaccine injuries.

The National Childhood Vaccine Injury Act limits liability of both vaccine manufacturers and those that administer vaccines, including, in this case, the doctors. The act (42 U.S.C. §300aa-11 (a)(2)(A) ) states:

No person may bring a civil action for damages in an amount greater than $1,000 or in an unspecified amount against a vaccine administrator or manufacturer in a State or Federal court for damages arising from a vaccine-related injury or death associated with the administration of a vaccine after October 1, 1988… unless a petition has been filed, in accordance with section 300aa–16 of this title, for compensation under the Program for such injury or death…

In other words, before suing a doctor for a vaccine-related injury or death the claimant would have to go through the National Vaccine Injury Compensation Program (NVICP). Once the program has decided, explains §300aa-21, a claimant can decide to sue in state courts – either before or after completing an appeal process.

In other words, doctors can, theoretically (see next section) be liable. In a Supreme Court case, Breusewitz v. Wyeth (pdf), the court decided that when it comes to product design defects, claimants cannot sue manufacturers at all – not even after going through the program. Ms. Taylor may be assuming that the case also prevented suing doctors at all. But there’s no basis in the case or the act for that. The clause interpreted by the Supreme Court is specific to manufacturers.

In other words, theoretically doctors can be sued once the NVICP process is concluded. In practice, the chances of such a suit winning are very low to nil, however, absent an unusual situation.

Ms. Taylor’s misconceptions

 

Ms. Taylor assumes she would have a valid claim against a doctor. There are two types of suits that can be brought in this situation. First, a plaintiff can claim medical malpractice. Second, a plaintiff can claim lack of informed consent.

Vaccinating is not medical malpractice. The AAP – the professional association of pediatricians –  recommends vaccinating. The vast majority of doctors support vaccinating. State and national health authorities recommend vaccinating. Vaccinating is following the standard of care.

A doctor is more likely to be liable for malpractice if he or she does not vaccinate and something happens. For example, Dr. Bob Sears said in several forums that he does not vaccinate young babies against hepatitis B, although experts recommend it and although the risk of contracting hepatitis B is low, it does exist. If a baby or young toddler contracts hepatitis B, for example, through a bite in daycare, parents who relied on Dr. Sears’ misleading advice probably have a reasonable claim against him.

But what is the claim against a doctor that recommended vaccinating on schedule? In some situation, there may be such claims – for example, a doctor recommends a live virus vaccine for an immune compromise child, against the recommendations, or other acts of negligence. But that’s not what Ms. Taylor has in mind.

Even if the standard was not – as it is for medical malpractice – the professional norm, the risks of vaccines are so small compared to the risks of not vaccinating that absent an unusual situation, again, the reasonable advice by the doctor would be to vaccinate.

Further, if an inherent risk materializes – as long as there was warning (see informed consent below) – there is no malpractice. An inherent risk here is something we expect a treatment to cause in a certain number – big or small – of those who receive it: think infection after a surgery, we expect it to happen occasionally, and it is not, by itself, evidence of malpractice (you’d have to show something else).

If a child had a reaction that is mentioned on the Vaccine Information Sheet, it’s an inherent risk, expected to happen in some people post vaccines. There was no malpractice and no basis for a claim. For example, a child who had a severe allergic reaction to a hepatitis B vaccine would have no claim in the regular courts – because that’s an inherent, if extremely rare, risk (pdf). In contrast, that child could be compensated through NVICP. Another reason NVICP is a better option for claimants than the courts.

Of course, if the claim is autism as a vaccine injury, you would also run into the problem of proving causation when all the credible evidence is against you. Ms. Taylor appears to think she can make a case; but people outside the anti-vaccine groups are not likely to buy into that.

The second potential claim is based on a lack informed consent. Specifically, the claimant would claim that the doctors did not warn the parent of the vaccine’s risks. Ms. Taylor, who believes vaccines cause autism, probably thinks they don’t do that.

But there is no credible evidence behind the claim that vaccines cause autism. Ms. Taylor has a list of studies she claims show that – but science bloggers have addressed most of those studies.

The list includes studies that are not about vaccines, as well as studies that are simply fatally flawed science. In a heroic effort, Ms. Liz Ditz went through the list as it then was (Ms. Taylor likes to mix up her list and add the latest study from the anti-vaccine movement) and explained, one by one, why the studies do not support the claim that vaccines cause autism.

There is no credible evidence supporting a link between vaccines and autism. There is plenty of evidence against it.

Informed consent requires doctors to inform the patients of risks that are actually there, not risks that anti-vaccine activists believe, against the evidence, are there.

Doctors would probably be protected from liability under this heading as long as they followed federal law and gave the patient or her parents the Vaccine Information Statement they are required to give.

There would, therefore, be no liability. And chances are Ms. Taylor wouldn’t get the discovery she has in mind. Discovery can be abused – used to harass the other side, used to fish for information – but claimant would have to show a claim first – and Ms. Taylor doesn’t have one.

That doesn’t mean doctors cannot be sued for giving vaccines. For example, doctors can be sued by claimants who went through NVICP – if they actually commit malpractice.

It’s not malpractice as Ms. Taylor sees it – not scaring parents from vaccinating by repeating anti-vaccine untruths. But acting in negligent ways. It’s true that they’re less likely to be, since many claimants would prefer to take the compensation from NVICP, or just not be able to mount a good case; but in theory, the liability is there.

Liability protections–barrier to discussing vaccines

 

So, Ms. Taylor is wrong that doctors have full liability protection:

  • she is wrong thinking she has a valid claim against them;
  • but if she was right about both those things, she would still be wrong when she claims that liability protections means doctors should not or cannot criticize the candidates for their misleading statements.

Public criticism is not malpractice; public criticism on a matter of public concern is an exercise of free speech. Ms. Taylor’s view that doctors who are protected from suit cannot speak on a matter of public concern holds no water.

Of course doctors can – and in fact, they should – speak up when candidates make false statements that can endanger children’s health and the public health.  Or even plain statements they disagree with. That’s the market of ideas for you.

Dorit Rubinstein Reiss
This article is by Dorit Rubinstein Reiss, Professor of Law at the University of California Hastings College of the Law (San Francisco, CA), is a frequent contributor to this and many other blogs, providing in-depth, and intellectually stimulating, articles about vaccines, medical issues, social policy and the law. 

Professor Reiss writes extensively in law journals about the social and legal policies of vaccination. Additionally, Reiss is also member of the Parent Advisory Board of Voices for Vaccines, a parent-led organization that supports and advocates for on-time vaccination and the reduction of vaccine-preventable disease.