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Compensating the Victims of Failure to Vaccinate: What are the Options?

Cornell Journal of Law and Public Policy, Vol. 23, No. 3, 2014

UC Hastings Research Paper No. 61

51 Pages Posted: 30 Aug 2013 Last revised: 12 Sep 2013

Dorit Rubinstein Reiss

University of California Hastings College of the Law

Date Written: July 22, 2013

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 diseases 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 also appropriate to require that a family that chooses not to vaccinate a child fully internalize the costs of that decision, and not pass them on to others.

The suggests that there should be a duty to act in this situation, since the non-vaccinating parents do create a risk. Even if this is seen as a classic situation of nonfeasance there are policy reasons to create an exception to the usual rule that there is no duty to act. As an alternative, it suggests adopting a statutory duty to act.

It 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 can be extended from an index case to subsequent cases. Finally, it addresses some of the potential counter arguments.

Keywords: Torts, vaccines

JEL Classification: K13, I18

Suggested Citation

Reiss, Dorit Rubinstein, Compensating the Victims of Failure to Vaccinate: What are the Options? (July 22, 2013). Cornell Journal of Law and Public Policy, Vol. 23, No. 3, 2014; UC Hastings Research Paper No. 61. Available at SSRN: https://ssrn.com/abstract=2317548

Dorit Rubinstein Reiss (Contact Author)

University of California Hastings College of the Law ( email )

200 McAllister Street
San Francisco, CA 94102
United States
415-5654844 (Phone)
415-5654865 (Fax)

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