A German boy named Micha died last June after several years of agony from a rare but fatal complication of measles called subacute sclerosing panencephalitis (SSPE).
While still too young to be vaccinated himself, he contracted measles from an unvaccinated child in a pediatrician’s waiting room. Years later, SSPE erupted. One family’s choice not to vaccinate their child effectively destroyed another family.
In the United States, where health insurance coverage is more limited than in Germany, Micha’s parents could have incurred substantial medical costs on top of their incredible heartache and suffering. The question is, would it be reasonable to hold the unvaccinated parents liable for those costs?
In a recent blog post, Bioethicist Arthur Caplan suggested that in cases similar to Micha’s, the non-vaccinating parents should be held responsible.
There are two arguments that can be used to support Caplan’s points and justify tort liability. The first focuses on compensation for the victims. The medical and scientific consensus is that the risks of vaccinating are significantly smaller than the risks of not vaccinating. Therefore, those that do not vaccinate are choosing the larger risk: an unreasonable choice. Since the tort of negligence was created specifically to compensate those harmed because of another’s unreasonable choice, the conditions of tort liability apply.
The second argument focuses on preventing externalities observed when parents roll the cost of their decisions onto others. Several studies have shown that unvaccinated children are at increased risk of vaccine preventable diseases, and therefore more likely to transmit those diseases and cause others harm. If parents are not held responsible and forced to pay when their unvaccinated child infects another, they will not consider those costs when deciding whether or not to vaccinate. However, assigning liability in these cases will encourage parents to include those costs into their calculation.