Medical Advice and Vaccinating: What Liability?

43 Pages Posted: 15 Sep 2014 Last revised: 5 Dec 2014

See all articles by Amanda Naprawa

Amanda Naprawa

University of California, Berkeley - Department of Public Health; Ohio State University (OSU) - Michael E. Moritz College of Law

Dorit Rubinstein Reiss

University of California Hastings College of the Law

Date Written: September 14, 2014

Abstract

Over the last few years, outbreaks of vaccine preventable diseases have become more common. A large part of the problem is the growth of the number of people who choose not to vaccinate their children. By rejecting the scientific consensus that the small risks of vaccinating are far outweighed by their substantial benefits, some parents are leaving their own children at increased risk and also putting others at risk. This article focuses on the role of the doctor and the doctor's advice about vaccinating or abstaining from vaccines. It examines whether the doctor should be liable if an unvaccinated patient contracts a disease and is harmed herself or infects others. The starting point of the article is that vaccination is recommended by professional organizations, supported by a majority of physicians, is the safer course, and hence advising to vaccinate on schedule is the standard of care. Given that, the article argues that doctors advising vaccination should not be liable if parents reject that advice. In contrast, doctors who do not recommend vaccination should be liable. This includes both doctors that passively accept a decision not to vaccinate and doctors who advise against regulation, though the latter are more culpable and may be subject to higher liability.

Keywords: medical malpractice, informed consent, vaccines

JEL Classification: I18, K13

Suggested Citation

Naprawa, Amanda and Reiss, Dorit Rubinstein, Medical Advice and Vaccinating: What Liability? (September 14, 2014). UC Hastings Research Paper No. 121. Available at SSRN: https://ssrn.com/abstract=2495971 or http://dx.doi.org/10.2139/ssrn.2495971

Amanda Naprawa

University of California, Berkeley - Department of Public Health ( email )

United States

Ohio State University (OSU) - Michael E. Moritz College of Law ( email )

55 West 12th Avenue
Columbus, OH 43210
United States

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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