Compensating the victims of failure to vaccinate: what are the options?

Abstract

This Article asks whether parents who choose not to vaccinate their child should be liable if that child, at higher risk of infectious disease than vaccinated children, transmits a vaccine-preventable disease to another. The Article argues that a tort remedy in this situation is both desirable and appropriate. It is desirable to assure compensation to the injured child and the family, who should not have to face the insult of financial ruin on top of the injury from the disease. It is appropriate to require that a family that chooses not to vaccinate a child fully internalizes the costs of that decision, and does not pass it on to others. This Article argues there should be a duty to act in the aforementioned situation, since the non-vaccinating parents create a risk. Even if not vaccinating is seen as nonfeasance, there are policy reasons to create an exception to the default rule that there is no duty to act. As an alternative, the Article suggests creating a statutory duty to act. This Article suggests that legal exemptions from school immunization requirements are not a barrier to liability, since the considerations behind those exemptions are separate from tort liability. It addresses the problem of demonstrating causation, and suggests in which types of cases showing causation would be possible, and when proximate cause is capable of extending from an index case to subsequent cases. The Article concludes by addressing potential counter arguments.