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Can Non-Vaccinating Doctors Be Sued?

by Amanda Z. Naprawa  

News outlets were abuzz earlier this month with reports about a study in the journal Pediatrics that found some doctors are delaying vaccines when parents ask them to do so. While over 90 percent of the doctors surveyed agreed that vaccines should be administered according to the CDC’s recommended schedule, and most also agreed that the failure to do so put the child at risk for disease, almost 40 percent of doctors were also willing to delay vaccinating children, in part to avoid alienating their parents or losing them as patients. This phenomenon raises an interesting legal question: If a doctor doesn’t require patients to adhere to the recommended vaccine schedule, is he or she legally liable if a patient catches one of the illnesses the vaccines prevent?

Unvaccinated children, and those who receive delayed or incomplete vaccines, are at greater risk of becoming ill with a vaccine-preventable disease than are vaccinated children. For instance, 90 percent of unvaccinated people who are exposed to a person infected with measles will become infected themselves. We also know that childhood vaccines are safe and that the recommended schedule is based on effectiveness. That is, children are vaccinated at certain ages because studies have shown that the vaccines are most effective at that particular time in the child’s development. Knowing all this, if a pediatrician willingly delays vaccination, should that pediatrician be liable if the patient becomes ill with a vaccine-preventable disease? What about a physician who actively advises against vaccination, maybe on the erroneous belief that the diseases we protect against “just aren’t that bad?”

As once-nearly eradicated diseases resurface in the United States, it probably won’t be long before we see a doctor getting sued either because an unvaccinated patient became ill or because that patient infected someone else. But will these types of lawsuits hold up?

A doctor is required to practice medicine according to the applicable “standard of care,” which is usually determined by looking to relevant professional guidelines or common practice in the greater community. It just so happens that when it comes to vaccinations, the appropriate standard of care is pretty clear. The American Academy of Pediatricians, the American Academy of Family Physicians, and the American Medical Association all agree that the CDC’s recommended schedule should be followed (unless a child has a known allergy to a vaccine ingredient).

Given that fact, there is a pretty good argument that a doctor who tells his patient (or the patient’s parents) it is okay not to vaccinate isn’t meeting acceptable standards. But what about a doctor who is just willing to go along with the parents’ decision not to vaccinate or to delay vaccinating, rather than actively advising it? Many physicians believe that it is unethical to refuse a patient solely on vaccination status, and the AAP agrees. Can the doctor protect himself if the unvaccinated child later becomes ill and the parent wants to sue? The doctor’s best bet is to give as much accurate information as possible to the parent: the known possible side effects of the vaccine, the known benefits of the vaccine, and the facts about the disease itself. That allows the patient (or his or her parent) to make an informed decision about whether to accept the vaccine or not, a process known as informed consent. If the parent knows all the risks and benefits, and still chooses not to vaccinate their child, the doctor has probably done all he or she is required to do (though it might also be wise to ask the parent to sign the AAP’s Refusal to Vaccinate form).

This idea of informed consent has a flip side: A doctor who misrepresents the true dangers of a disease (“Ah, measles, it never kills anyone”) is not giving the patient information needed to make an informed decision. Measles, after all, can be a very serious (and even fatal) disease. And if that child becomes ill with measles, and suffers a horrible complication, the parent has a pretty good argument that the doctor failed to obtain the legally required informed consent.

Doctors and parents usually both want what is best for a child. The relationship of trust between parent and doctor requires that the doctor share all the accurate, scientifically valid information he or she has about vaccines. Remember, doctors who actively advise against vaccinating are in the minority. If you find yourself with a doctor who downplays the risk of vaccines, or who cites misleading information on vaccine safety, it might be time to look for a new one. After all, it’s your child’s health we are talking about, and no lawsuit, even if victorious, can bring that back.