Civil Liability for Antivaxxer Parents in Texas

Could failing to vaccinate cause liability for antivaxxer parents?

Hypothetical Facts
Mr. & Ms. Antivaxxer are concerned parents who have heard about a link to Autism from the MMR vaccine. Motivated by a desire to avoid Autism for their child, they refuse to vaccinate. The Antivaxxer family then puts their child in daycare, despite having some mild cold symptoms. In a few days, the child develops a measles rash and the Antivaxxer family keeps the child home. About a week later, a daycare classmate who was too young for the MMR vaccine dies from the measles.

Issue
Could Mr. & Ms. Antivaxxer be liable for negligence for the wrongful death of the daycare classmate?

Answer
Yes. To establish negligence, the plaintiff must demonstrate that: (1) the defendant owed the plaintiff a legal duty, requiring the person to conform to a certain standard of conduct for the protection of others against unreasonable risks; (2) the defendant breached the duty; (3) the breach of that duty proximately caused the harm suffered; (4) the plaintiff suffered damages. The plaintiff must prove this by a preponderance of the evidence, meaning that it was more likely than not that the harm was caused by the failure to vaccinate.

Discussion
Duty
Courts have long held that individuals with hazardous, contagious diseases have a legal duty to protect others from the danger of infection. See, e.g., Hamil v. Bashline, 481 Pa. 256, 265-66, 392 A.2d 1280, 1284 (1978). In 1884, a New York court was the first in America to hold parents liable for negligently taking their child, who was infected with the whooping cough, to a boarding house. Smith v. Baker, 20 F. 709 (S.D.N.Y. 1884).

Breach
Once a duty has been shown, the plaintiffs must show a breach. They would show that Mr. & Ms. Antivaxxer should have taken reasonable precautions to reduce the risk of their unvaccinated child acting as a vessel to spread infectious disease.

Causation
The Plaintiffs must prove that their child’s death would be linked to the Antivaxxer’s failure to have their child vaccinated. This test requires that the plaintiff show the harm would not have occurred but for the defendant’s conduct. In making this determination, the trier of fact would weigh the risks of the Antivaxxer’s failure to vaccinate their child, the failure to warn others with whom they regularly came into contact, and her failure to withhold their child from daycare when she was ill, knowing potentially vulnerable children were present. As the Maryland Court of Appeals has held,

    One who knows he or she has a highly infectious disease can readily foresee the danger that the disease may be communicated to others with whom the infected person comes into contact. As a consequence, the infected person has a duty to take reasonable precautions — whether by warning others or by avoiding contact with them — to avoid transmitting the disease.

B.N. v. K.K., 312 Md. 135, 141, 528 A.2d 1175, 1178 (1988).

In order for the defendant to foresee the harm, she must have either actual or constructive knowledge. Constructive knowledge encompasses a gamut of possible mental states, such as “one who is deliberately indifferent in the face of an unjustifiably high risk of harm,” or “one who merely should know of a dangerous condition.” John B. v. Superior Ct., 45 Cal. Rptr. 3d 316, 324, 137 P.3d 153, 159 (2006).

Because measles is a rare disease, the epidemiological evidence would be 90-95% certain that the measles from the unvaccinated child caused the death of the plaintiff’s child. This would easily meet the more likely than not preponderance of the evidence threshold in civil litigation.

Damages
The plaintiffs would recover damages ranging from their economic damages, to their pain and suffering, mental anguish, and other non-economic damages.

Conclusion
Yes, the parents of the unvaccinated child who transmitted the measles could be liable for the other child’s death. Also, the daycare could face potential liability for failing to inquire about the vaccinations of the children at their facility for similar reasons. The rumors about vaccinations causing autism have been thoroughly debunked and retracted by the original sources. Parents who refuse to vaccinate their children genuinely believe that they are helping their children. However, this belief is based on incorrect assumptions and will lead to other children’s deaths.

If your child is injured, it is important that you contact personal injury attorney to investigate your legal rights.