Andrew Wakefield keeps trying–another appeal

On September 19, 2014 the Third Court of Appeals of Texas rejected Andrew Wakefield’s appeal against the decision of a Texas trial court that it had no jurisdiction to hear his libel suit against The British Medical Journal (the original article), Brian Deer, and Fiona Godlee. The details of that case and the suggestion that Andrew Wakefield was strategically using litigation to both rally supporters and deter critics have been previously addressed.

Andrew Wakefield had 45 days to appeal the decision to the Texas Supreme Court (Tex. R. App. P. 53.7). That time ended on November 3–an appeal was not filed by Mr. Wakefield within that time. Continue reading “Andrew Wakefield keeps trying–another appeal”

Litigating as “debate” tactic? Wakefield appeal was denied

Andrew Wakefield was wronged

In January 2012 Andrew Wakefield, a British citizen residing in Texas, sued Brian Deer, a British journalist, the British Medical Journal (BMJ), and Dr. Fiona Godlee, the British editor of BMJ, in a Texas trial Court for libel. Wakefield claimed that a series of articles titled “Secrets of the MMR Scare” written by Brian Deer, edited by Fiona Godlee and published in the BMJ were defamatory. The articles detailed serious scientific misconduct by Andrew Wakefield.

On August 3, 2012, Wakefield’s suit was dismissed based on a lack of jurisdiction. Wakefield then appealed the dismissal. On September 19, 2014 the Texas Court of Appeals for the Third District ruled that the Andrew Wakefield appeal was denied (pdf).

The decision itself is focused on issues of civil procedure that may be less of interest to non-lawyers, though these issues are crucially important to litigants and lawyers. But this story is a good demonstration of strategic use of litigation by Andrew Wakefield and an opportunity to discuss the advantages and potential problems of that approach. Continue reading “Litigating as “debate” tactic? Wakefield appeal was denied”

Improving immunization rates – what can the Law do? 

vaccine hate debate

Many of us are concerned at the rise of cases of preventable diseases and the role played in that by the decision by a minority of parents not to vaccinate their children. One question is what, if any, effects would legal tool have on improving immunization rates? This article attempts to map out the available tools.

Note that the focus of this article is what the law can do, not what the law should do. The fact that a legal tool is available – i.e. Constitutional, can be enacted or used by the courts – doesn’t automatically mean it should be. I would, in fact, argue that some of the tools discussed here shouldn’t be used in the context of immunization – in most circumstances, forced vaccination and criminal law are inappropriate. But mapping out what’s available seems like a useful first step in the discussion of what the law should do. The goal of this post is to provide a menu of options and a more or less logical way to classify them. My hope is that setting out what’s possible would help us think through what is desirable.

 

Continue reading “Improving immunization rates – what can the Law do? “

Court upholds policy denying religious exemption to vaccines

Last week the Federal District Court of the Eastern District of New York rejected a claim brought by three plaintiff families against various aspects of New York’s school immunization requirements. The decision did not include any legal innovation: it was completely based on well-established precedent that schools can deny a religious exemption to vaccines. But it offers a chance to reflect on what that precedent is, why it is in place, and what it means for us.

The take-home point? Our immunization jurisprudence gives states substantial leeway to protect the public health via vaccination requirements, specifically, in this context, by allowing states to decide whether, and under what conditions, to exempt students from school immunization requirements. But states have to actually use that power to achieve anything. By leaving the floor to the passionate, if passionately wrong, anti-vaccine minority, we are allowing them to undermine the right of the rest of us to be free from preventable diseases.

In other words, those who vaccinate need to speak up and make it clear to their elected representatives that they want state law to protect their children – and the community – against outbreaks of preventable diseases. The laws will not enact themselves, and our representatives need to know the public wants this protection, that the public does not want high rates of measles cases or other diseases.

Just like the diseases, anti-vaccine legislative successes are preventable. And just like the diseases, doing nothing won’t prevent them.  Continue reading “Court upholds policy denying religious exemption to vaccines”

Health Care Workers, Flu Vaccines, and Work Place Discrimination

In a previous post, I described a New Jersey Court of Appeals case in which Ms. Valent was denied unemployment benefits because she refused flu vaccines without claiming the religious exemption. I explained that the hospital was not constitutionally required to provide a religious exemption, and that doing so was a losing proposition from a hospital’s point of view.

In the comments following that post, it was correctly pointed out to me that there is another claim I should have addressed: a claim that the hospital was required to provide a religious exemption under the Civil Rights Act of 1964. This did not come up in the case itself: the court reinstated the nurse’s unemployment benefits on constitutional grounds, though problematic constitutional grounds. But since I argue that hospitals should not offer a religious exemption, I need to address whether the hospital is required, under Title VII, to offer an accommodation.  Continue reading “Health Care Workers, Flu Vaccines, and Work Place Discrimination”

No faith – healthcare workers, vaccines and religion

June Valent started working for Hackettstown Community Hospital, New Jersey, in 2009. In 2010, the hospital adopted a policy requiring workers to be vaccinated against influenza, unless “there [was] a documented medical or religious exemption. For those with an exemption, a declination form must be signed and accompanied with an appropriate note each year.” An employee claiming a religious exemption just has to sign a form and bring a note from a religious leader. Employees using an exemption were required to wear a mask.

To her credit, Ms. Valent was unwilling to pretend her reasons for refusing the vaccine were religious. Less to her credit, she refused to be vaccinated, even though she had no medical reason, and vaccinating would reduce her chances of contracting influenza and transmitting it to her vulnerable patients. She did agree to wear a facemask, as any vaccine exempt worker would.

The hospital fired Ms. Valent for violating the policy. The issue under consideration was whether she was entitled to unemployment benefits. Under New Jersey law, an employer may deny unemployment benefits if the employee engaged in misconduct, which includes violating a reasonable rule of the employer. After somewhat complex proceedings, the Appeal Tribunal of the Board Of Review of the Department Of Labor decided to deny her the benefits because the employer’s requirements were “not unreasonable.” Continue reading “No faith – healthcare workers, vaccines and religion”

Parents, children, loss of custody and immunization

This article uses the very recent decision of the Supreme Court of Oregon in Department of Human Services v. S.M. (pdf) to discuss a specific question: if parents lose custody of their children, can they still refuse immunizations? The Oregon Supreme Court joins others in saying that the answer is no. As discussed, this is the right result.

Loss of custody and immunization is a key issue of parental rights on several levels. Let’s discuss the case in Oregon in detail

Continue reading “Parents, children, loss of custody and immunization”

Anti-vaccine claims, misrepresentation and free speech

Imagine the following scenarios:

  1. 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”.
  2. 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.
  3. 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.
  4. 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.
  5. These claims are demonstrably false.
  6. 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.

Continue reading “Anti-vaccine claims, misrepresentation and free speech”

Religious exemptions for vaccination – abuse and reform

In November 2013, the New Mexico Department of Health published the results of a survey examining people getting an exemption from school immunization requirementsThe survey found that most people getting an exemption – 54.9% – explained their reasons to be “philosophical” or personal belief, including concerns about vaccine harms, a preference for natural immunity, and a belief they could protect their children in other ways. 

The problem is that New Mexico does not offer a personal belief exemption. It offers medical exemptions and religious exemptions for vaccination only. In other words, these people got their vaccine exemption using an exemption that did not reflect their real reasons.

Our host, the Skeptical Raptor, invited me to describe an article I wrote on this that is forthcoming in the Hastings Law Journal. The article argues that: