This article about a Tennesse jury rejecting a malpractice claim that a physician who gave a vaccine caused autism was written by Dorit Rubinstein Reiss, Professor of Law at the University of California Hastings College of the Law (San Francisco, CA), who 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 a 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. She is also a member of the Vaccines Working Group on Ethics and Policy.
On February 18, 2022, a jury in Tennessee rejected a malpractice case filed by Rolf Hazlehurst for his son Yates, in which he claimed that the child’s doctors, by giving him a vaccine, caused the child’s autism. The case was rejected because the doctors did not violate the standard of care, did not commit malpractice in giving the child a vaccine. The case never got to assessing the causation question – did the vaccines cause Yates’ autism – but the chances of prevailing on that were also low.
Background on malpractice claim
Yates Hazlehurst is a young man with autism, and his parents blame his autism on vaccines. Yates was one of the children whose case served as a test case during the Omnibus Autism Proceedings. In 2009, Yates’ claims were rejected by the special master in a lengthy, thorough decision that run 203 pages. The Hazlehurst family appealed first to the Court of Federal Claims and then to the Federal Circuit. Both appeals were rejected.
In 2002, the Hazlehursts also sued Yates’ doctors, claiming malpractice and lack of informed consent for the vaccine. The lawsuit was put on hold while the proceedings in vaccine court were ongoing, but the Hazlehursts picked it up again after the loss. My impression is that the lawsuit had some struggles because when I next heard of it it was in 2018 when anti-vaccine activists tried to revive the claim that vaccines cause autism in problematic ways. I have followed the case since. At some point, anti-vaccine leader Robert F. Kennedy Jr. became co-counsel in the case, and later, Attorney Aaron Siri, who works for the anti-vaccine organization Informed Consent Action Network (ICAN), also joined the case.
As stated in the judgment, “[t]his case was tried before a jury of twelve (12) Madison County Residents beginning on February 2, 2022, and concluding on February 18, 2022.
The basics of a malpractice claim
Medical malpractice claims are claims of professional negligence. To prove a negligence claim, plaintiffs need, in essence, to show:
- that the defendant owed a duty of care to the plaintiff,
- that the defendant breached his/her/their duty of care,
- the breach caused the harm,
- that the harm was within the scope of liability/proximately caused by the breach (you will hear different formulations of this element from different courts, and these are not the only ones – but you, dear reader, don’t need to worry about that, since it wasn’t an issue in this case. If you ever take a torts class, you will have to agonize over this) and
- that there were legally cognizable harms.
The Hazlehursts would not have a problem with element 1, since doctors usually have a duty of care to their patients. They would not have a problem with 4, since if they breached their duty, and the breach caused the harm, the link to the harm was very clear and close (yes, this is simplifying), and they would not have a problem showing 5, since they no doubt had costs related to helping their child handle his disability.
It is elements 2 and 3 – whether there was a breach of the duty of care and whether the breach caused the harm – where their case ran into trouble. I will say a few short things about each element.
To show a breach in a medical malpractice case, the plaintiff generally needs to show that defendant’s conduct fell below the:
…level and type of care that a reasonably competent and skilled health care professional, with a similar background and in the same medical community, would have provided under the circumstances that led to the alleged malpractice.”
In lay terms, the question is whether another competent doctor in the same or similar community would have acted the same under the same circumstances. This is often addressed through testimony from other doctors, from medical texts, guidance documents from experts agencies, etc’. For causation, the plaintiffs would have to show that the breach they are alleging – the sub-standard conduct – led to Yate’s autism.
Plaintiffs failed to convince the jury of breach
In the Hazlehurst case, what the plaintiffs would have to show is that a reasonably competent doctor would not have given Yates vaccines in 2001. In the last version of the complaint I have, from February 11, 2019, the argument was that because Yates “had congestion in his lungs and was emitting a green, nasal discharge,” he should not have been vaccinated at six months, that plaintiffs think the child had encephalitis after his six months vaccines, even though the child was never diagnosed with encephalitis, and therefore should not have been given his nine months vaccines, and that his recurrent ear infections, thrush, and recurrent colds should have led to him not being vaccinated.
In addition, plaintiffs claimed that the doctors failed to satisfy informed consent by failing to give the vaccine information statements to the parents and failing to have a “meaningful” discussion with the parents on the risks and benefits of vaccines.
The plaintiffs had to convince the jury that the claims above were true, and also that a reasonably competent doctor would not vaccinate a child in these circumstances. They also had to assess whether the parents (or their representatives – in the first case, the grandmother took Yates to his appointment) were given the information needed to give informed consent.
The case was not accessible to the public virtually, and I did not attend the hearings in Tennessee. With a jury decision, it is hard to know what, exactly, the basis of the decision was, whether the jury did not believe all the facts, or believed them but decided that the standard was met anyway. What is clear is that the jury found for the doctors here. The judgment reads:
…the jury found that E. Carlton Hays, M.D./The Jackson Clinic provided the requisite information to Yates Hazlehurst’s parents to allow Yates Hazlehurst’s parents to formulate an intelligent and informed decision on authorizing or consenting to Yates Hazlehurst receiving his childhood immunizations on February 8, 2001 and that Carlton Hays, M.D./The Jackson Clinic did not deviate from the recognized standard of acceptable professional practice in this medical community or a similar community in his/their care and treatment of Yates Hazlehurst when administering vaccines to Yates Hazlehurst on February 8, 2001.
This is clear. The jury found for the doctors on the breach issue. The case ended there: if one of the elements of negligence is not fulfilled, plaintiffs lose.
What about causation?
The jury did not reach the causation question here. But I will say a short thing about it. We have learned through anti-vaccine claims before that the causation theory of the plaintiffs is that Yates Hazlehurst had an undiagnosed mitochondrial disorder that predisposed him to regress to autism from his vaccines. The plaintiffs were using two experts to support that claim – Dr. Andrew Zimmerman and Dr. Richard Kelly. Again, I addressed this at length before, as did the talented Orac, twice.
There are two large problems with this theory in this case, and if the case has gotten to causation – which it did not – those would have made plaintiffs likely to lose before the jury on that, too. First, there is no good evidence that mitochondrial disorders increase the risk of vaccines harms. Plaintiffs are building on one previous case there, that of Hannah Poling. In that case, the vaccine compensation program’s government assessors decided to compensate a child with a rare genetic disorder because it was possible – though not certain – that vaccines caused her harm.
Because the case was accepted by the government, it was never thoroughly tried; but as I addressed in my previous post on this case, other claims that vaccines cause children with mitochondrial disorders to regress were rejected by the Vaccine Injury Compensation Program, among other things because there is no good scientific evidence for such a link. As the CDC says:
As of now, there are no scientific studies that say vaccines cause or worsen mitochondrial diseases. We do know that certain illnesses that can be prevented by vaccines, such as the flu, can trigger the regression that is related to a mitochondrial disease. More research is needed to determine if there are rare cases where underlying mitochondrial disorders are triggered by anything related to vaccines. However, we know that for most children, vaccines are a safe and important way to prevent them from getting life-threatening diseases.
In the deposition, neither Dr. Kelly nor Zimmerman pointed to data to the contrary.
Besides the lack of scientific evidence for the theory, the other challenge to proving causation would be that in 2002 Dr. Zimmerman and Dr. Kelly examined Yates, and at the time, they did not diagnose him with mitochondrial disorder, as Dr. Zimmerman acknowledged in his deposition (see pp. 58-64). Countering that with a decades-later diagnosis would be tricky.
So the plaintiffs’ causation case was deeply problematic, but since the case was rejected when the jury found no malpractice and no lack of informed consent, the court never decided this.
What next for malpractice claim against doctor and the vaccine
First, this case is the fourth decision addressing the claim that vaccines cause young Yate Hazlehurst’s autism. Four separate judicial forums – including a jury – have found against the parents’ claims. This case has been thoroughly, carefully litigated again and again. Few claims have been given as thorough a hearing in our system, by as many independent groups.
That said, I would expect Mr. Hazlehurst to appeal the decision that there was no link between the vaccine and autism and malpractice by the physician. Not because justice was not done, but because this is clearly burning in his – and likely Mrs. Hazlehurst’s – bones. They have pursued this case for twenty years now. It is clear they feel wronged. I expect they will continue to fight as long as they can. But appealing a fact-based jury decision is very hard; courts of appeals are unlikely to overturn it. They will have to come up with a legal argument against the decision, and that, too, will be challenging.
Wherever they go next, I hope the Hazlehursts eventually find peace and resolution.
I, however, am relieved that this malpractice case cannot now be used in the service of the anti-vaccine movement, as a tool to scare more parents off vaccinating and protecting their children and to scare doctors off vaccinating their patients. It would not have changed the science that shows that vaccines do not cause autism, but it could have been misused to obfuscate that.
Now it cannot. So thank you, Tennessee’s legal system.
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