Imagine the following scenarios:
- A mother comments on an anti-vaccine Facebook page belonging to a Doctor known for her opposition to vaccines, saying that she is about to travel to a third world country for which the CDC recommends certain vaccines. She asks what vaccines, if any, she should get for her unvaccinated eight-months old. The doctor responds with “none; these countries are perfectly safe, there’s no higher risk there”.
- Another mother comments on the same Facebook page saying that a dog bit her daughter. She asks whether she should, in this case, get the rabies vaccine or tetanus vaccines. The doctor recommends against it, deviating from the standard of care.
- An anti-vaccine organization publishes an article describing measles as a “mild childhood disease,” potentially beneficial to the immune system and repeating the debunked claim that the MMR vaccine causes autism. It encourages readers not to vaccinate.
- An anti-vaccine doctor records a video recommending that citizens in a country that had polio discovered in the sewers avoid getting the Oral Polio Vaccine, as their Ministry of Health recommends. The doctor claims that: 1) Polio is not generally dangerous, and the polio epidemics in the United States were caused by use of DDT, 2) the polio vaccine is more dangerous than polio itself, or 3) vitamin C can prevent or treat polio.
- These claims are demonstrably false.
- An anti-vaccine site has an article suggesting that tetanus is not usually dangerous and can be prevented by letting wounds bleed and cleaning them with hydrogen peroxide.
If an individual relies on that advice but is hurt, is there a legal remedy? Or is there a way to prevent the harm? Are these kinds of comments protected by free speech?
These questions are the subject of a recent article by Amanda Naprawa, a lawyer and MPH (Masters of Public Health) student. (See Amanda Z. Naprawa, Don’t Give Your Kid That Shot!: The Public Health Threat Posed By Anti-Vaccine Speech And Why Such Speech Is Not Guaranteed Full Protection Under The First Amendment, 11 Cardozo Pub. L., Policy & Ethics J. 473 (2013)).
Naprawa suggests anti-vaccine claims and utterances, because of their falsity and potential harm, deserve only limited protection under the first amendment. She discusses three legal tools available to limit or remedy the harm from such speech: regulation by the Federal Trade Commission of false advertising (FTC), product disparagement suits by the manufacturers of vaccines, and individual suits for misrepresentation that causes bodily harm. This post focuses on the last tool. I intend to address the other two in another post.
§311 of the Restatement (Second) of Torts says:
Negligent Misrepresentation Involving Risk Of Physical Harm is defined as
- One who negligently gives false information to another is subject to liability for physical harm caused by action taken by the other in reasonable reliance upon such information, where such harm results a) to the other, or b) to such third persons as the actor should expect to be put in peril by the action taken.
- Such negligence may consist of failure to exercise reasonable care a) in ascertaining the accuracy of the information, or b) in the manner in which it is communicated.
An example in the restatement is a driver signaling another driver to pass when the road is not actually clear (and the passing driver does not have a clear view herself).
One example for the use of this tort in relation to a medical product is in Conte v. Wyeth (168 Cal. App. 4th 89, 101 (2008) petition for rev. denied, January 21, 2009. In that case a court of appeals allowed a case against Wyeth, based on negligent misrepresentation of a risk, to go forward, even though the patient in that case used a generic brand, under the theory that negligent warnings may have misled the prescribing doctor. It has been used in a variety of other contexts, too.
To win a case, a plaintiff has to demonstrate that:
- The information was false.
- It was given negligently.
- The plaintiff relied on it reasonably.
- The false information caused the plaintiff’s harm.
- The plaintiff suffered harm that the legal system recognized.
As I will demonstrate in a moment for one of the hypotheticals above, the elements can probably be proven for each of those pretty easily. But there are at least two concerns in allowing such a tort. First, and the focus of Ms. Naprawa’s article, is that because of the first amendment, courts are very, very cautious in taking steps to limit public speech – especially speech which, as Ms. Naprawa points out, touches on matters of public concern. Second, in addition to the speaker, there is also action by a third person: the person deciding to rely on the misrepresentation. Normally, if adults in sound mind chose to rely on someone’s advice, they should take responsibility for that choice, and not roll the results on the person that gave the advice. Here, this idea is captured by the concept of reasonable reliance.
Free Speech and Misrepresentation:
The First Amendment protects most forms of speech against government regulation, and to some degree, against tort claims, too (See, e.g. Snyder v. Phelps, 131 S. Ct. 1207 (2011), where an Intentional Infliction of Emotional Distress (IIED) claim was barred because of first amendment concerns). But as Ms. Naprawa points out, the protection offered to false statements of fact is not as broad as that offered to opinions, even when they touch on matters of public concern. Snyder v. Phelps explains that:
Speech deals with matters of public concern when it can “be fairly considered as relating to any matter of political, social, or other concern to the community…
False speech receives limited protection even if it is on matters of public concern, because it does not advance the goals of free speech (Naprawa, 502). This could justify allowing claims under §311 in this context.
There is, however, one line of cases that may be a barrier to these claims. These are the cases that refuse to hold a publisher liable for misrepresentation included in a book they publish. For example, in Smith v. Linn, 587 A.2d 309 (Pa. 1991), Mrs. Smith followed a diet included in a book published by Lyle Stuart. After six months of following the diet and losing 106 pounds she died from a cardiac arrest allegedly caused by the diet. The court dismissed her husband’s claim against the publisher on First Amendment grounds. This ruling probably would not cover specific advice or comments by anti-vaccine activists – there, the general principle that false assertions of facts are not entitled to the same protection as other forms of speech would govern. But when articles are published on anti-vaccine sites, Smith may bar liability for the anti-vaccine organization, if not for the author of the article, without show of “actual malice”.
Naprawa suggests it should not. Her first argument is that it’s possible to show actual malice – but that seems to me problematic. First, although it’s hard to prove, I have a suspicion that many anti-vaccine activists actually believe many of their claims. But even if they do not, proving that they did not actually believe what they say – or even that they were reckless in checking if it’s true or false – is going to be hard. The actual malice is a high standard to meet – with good reason. It is in place to offer maximum protection to freedom of speech.
Be that as it may, Ms. Naprawa’s other arguments are, I think, spot-on. The anti-vaccine claims are factual, and hence provable or disprovable: it is unlikely that people will be penalized for expressing their opinion alone. Anti-vaccine claims often touch on, or actually are, medical advice, and medical advice has traditionally been highly regulated, so this is not extending legal reach to types of utterances previously completely unregulated. And since the decision is often made in relation to a child, and courts offer children special protection, there is additional reason to step in and protect them. She also highlights that the harm does not stop with the decision maker: if a child got a VPD (vaccine preventable disease) because her parents did not vaccinate her, she may infect others. By contributing to a decline in herd immunity, anti-vaccine speech can lead to outbreaks, putting others at risk. These higher risks justify more intervention than in other forms of speech.
Could use of §311 in this context be extended to other medical advice, and lead to penalizing of legitimate medical advice offered through articles on the web, if any error happens to be in the article? It is a real concern. People do look for medical information online, and it is a valuable social service to provide it. We would not want too many suits to have a chilling effect on such articles. On the other hand, some of the same logic applies – if someone provides medical advice online, we want it to be accurate, to prevent harms.
I think this concern justifies adopting a standard – similar to the one used in defamation cases – of “substantial truth,” suggesting that slight inaccuracies would not make a statement false for the purpose of §311.
Personal responsibility matters. An adult in sound mind should stand behind her choices. If she chose to reject her doctor’s advice in favor of the advice of a random source, she should not usually be able to shift the costs of that choice onto her source of information. That said, personal responsibility also means that those who hold themselves as an authority should either take care to make sure their advice is accurate or pay when someone relies on such advice.
The “reasonable reliance” requirement can be used to balance those two. In my view, these criteria should be considered in assessing whether the reliance was reasonable:
- Qualifications of the provider of information. Ms. Naprawa correctly suggests, in the first part of her article, that advice offered by a doctor should be held to a higher standard than advice offered by a layperson. That said, if an anti-vaccine organization, or a chiropractor, holds themselves out as experts on vaccines, reliance on their advice may be found reliable.
- Content: How authoritative and supported did the advice seem?
- Consistency: it is more reliable to rely on an organization that regularly offers anti-vaccine advice – a regular source – than on a casual commentator.
- Cost: Ms. Naprawa suggests, and I think she is right, that it is more appropriate to find reliance if the advice receiver had to pay for the advice or if the advice provider had a financial interest (e.g. by selling a product to “detox” after vaccines). People may have a stronger expectation that someone selling them a product, holding themselves as expert enough to charge money for advice or counters, will be knowledgeable on the subject. It is not, however, a requirement of §311, and if reliance is otherwise reasonable a non-profit should also be held to account.
- Expectation: if there is evidence that the provider of advice expected people to rely on it, or intended people to rely on it, that could argue in favor of finding the reliance reasonable. This would be stronger when the advice is specific and/or in response to the question than if there is a more general article.
How would this work in a case?
The first example above is probably the easiest case here. The provider of information is a doctor, and the advice offered is clearly counter to official advice. Reliance on a doctor’s advice is more reasonable than relying on a layperson’s advice (though if the person asking the question is aware of the CDC’s recommendation, reliance is less reasonable). While the content was short, the advice was reasoned. And if the doctor regularly provides advice, consistency is met. This is a specific piece of advice, and the doctor probably should have expected reliance: the person asking the advice indicated by her question that she is at least somewhat likely to rely on the doctor’s word.
Causation would be proven by the person in question testifying that she would have vaccinated her child absent the doctor’s advice. However, there may be an issue there: if the parent chose to get her advice from an anti-vaccine doctor, she may not have vaccinated the child anyway. The parent would have to convince a court that she chose not to vaccinate in reliance on a doctor’s advice.
If the child in question then contracts a vaccine-preventable-disease for which the vaccine was recommended for the travel, a negligent misrepresentation suit may be appropriate. Similar causation issues may arise in any such suit – again, parents choosing to get information from an anti-vaccine site may be already skeptical, even hostile to vaccination. They would have to convince the court, in every case, that it was the advice that led to their decision – not always an easy burden.
Other causation problems may arise when the advice is found on multiple anti-vaccine sites, and the parent relied on more than one. That may be the case, for example, in the example Ms. Naprawa provides – not vaccinating because of fear of autism. In that case, plaintiff would have to use one or more of the doctrines available under our law to handle cases of multiple defendants and prove their elements. For example, the “alternative liability” doctrine initially created in the case of Summers v. Tice, 33 Cal.2d 80, 199 P.2d 1 (1948). Under that doctrine, if two or more defendants were at fault, but it’s unclear which one caused the harm, the burden is on each defendant to prove that they did not cause the harm. There are also other doctrines available.
I am convinced by Ms. Naprawa’s argument that in certain circumstances it may be possible to win a suit against a provider of anti-vaccine information if that information caused physical harm. The requirements of reasonable certainty and the need to show causation should prevent too many suits, keeping this a narrow claim. But if an anti-vaccine organization takes it upon themselves to deviate from the medical and scientific consensus and deter people from vaccinating based on inaccurate claims, and if someone is harmed by that advice, placing the burden on the giver of the advice can be appropriate.
Acknowledgements: I am grateful to Khedron Frank, Amy Ives, Cigal Shaham for their help with this post.
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