Legal Aspects of Vaccinations: Waivers and Compensation

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LEGAL ASPECTS OF VACCINATIONS:
WAIVERS AND COMPENSATION

The decision whether or not to vaccinate is an important one. No matter where you stand on the issue, there are undeniably risks involved on both sides: on one side is the risk of your child contracting a disease if you decide not to vaccinate; on the other side is the risk of injury or death if you do vaccinate. The crux of the matter is of course the likelihood of such a tragedy, which is subject to debate. What cannot be debated is that your right as a parent not to vaccinate your child if you so choose is not widely known, and exercising such rights is not encouraged. Furthermore, the remedies available to those whose children have suffered injury or death from vaccines are limited by law, are expensive and time-consuming to obtain, and are generally unknown to the public. It is the mission of GVAL to publicize this potentially tragic situation and to work for reform. Only when people know their rights can they make an informed choice - this is a fundamental tenet of a free society. Therefore, it is essential to those concerned about the vaccination decision to know what the law provides.

A majority of states have enacted into law some kind of exemption from mandatory childhood vaccinations, based either upon personal or religious belief or for medical reasons. In California, state law provides for mandatory vaccinations for diphtheria, hepatitis, influenza, measles, mumps, pertussis, poliomyelitis, rubella and tetanus, and any other diseases designated by the Department of Health Services in consultation with the Center for Disease Control and the American Academy of Pediatrics. This requirement is waived if the person "files with the governing authority a letter or affidavit stating that the immunization is contrary to his or her beliefs." If the exemption is exercised, the student may be temporarily excluded from school if "there is good cause to believe that the person has been exposed" to one of the enumerated diseases "until the local health officer is satisfied that the person is no longer at risk of developing the disease." (California Health and Safety Code Section 120365). This is the "personal beliefs" exemption in California law.

The exemption is fairly easy to exercise. Each student in California is required to submit a "California School Immunization Record" to be admitted to school (California Health and Safety Code Section 12-375).

On the reverse of the form is the following statement: "I hereby request exemption of the child, named in the front, from the immunization requirements for school/child care center entry because these immunizations are contrary to my beliefs. I understand that in case of an outbreak of any of these diseases, the child may be temporarily excluded from school for his/her protection." To exercise the exemption, you simply sign the immunization record under this statement.

There is another exemption which is available, although it is more difficult to exercise because a medical opinion is necessary. If immunization is "contraindicated", that is, considered to be potentially harmful to the child for medical reasons, an exemption is granted upon the filing with of "a written statement by a licensed physician to the effect that the physical condition of the child is such, or medical circumstances relating to the child are such, that immunization is not considered safe, indicating the specific nature and probable duration of the medical condition or circumstances that contraindicate immunization..." (California Health and Safety Code Section 120370).

As anyone who has attempted to exercise their rights under these provisions can testify, the school authorities generally take a dim view of deciding against vaccination, especially on the grounds of personal belief. It does not take a rocket scientist to understand why. A student who claims the exemption makes the job of the authorities more difficult; from the prospective of these authorities, a 100% vaccination rate would certainly be administratively more convenient and would make it easier to perform their duties.

These difficulties could increase if the right to the exemption became widely known or exercised. Therefore it is not in the interest of the school health officials to promote the exercise of the waiver, and they may in fact discourage the exercise or even conceal the existence of this legal right. The fact that the law does not require parents to be notified of the right to the exemption or for the school to certify that these rights have been explained to the parent places the burden of exercising the exemption on the individual. If you do not know of this right, the school or the state is certainly not going to make you aware of it. It therefore falls upon private foundations and organizations such as GVAL to make these rights known.

While the difficulties with exercising the waiver may be the result of mere bureaucratic indifference, more substantial obstacles are presented when you seek legal redress in the form of compensation for injury or death due to a vaccine. It is not as simple as filing a lawsuit against those alleged to be responsible. This was possible before October 1988, the effective date of federal legislation creating the National Vaccine Injury Compensation Program (the "Program"). Since the creation of the Program, you cannot file such a lawsuit until you file a claim under the Program and that claim is adjudicated by the US Court of Federal Claims, the court given jurisdiction over the Program.

The Program is a "no-fault" system of claims adjudication similar to workers compensation, meant to provide a means of providing speedy compensation to victims while protecting vaccine manufacturers and health providers from excessive liability and litigation costs. Prior to creation of the Program, several vaccine manufacturers were making overt plans to withdraw from production because of the rising costs of litigation. There was also a concern that the continuing litigation and public outcry over the possible harmful effects of mandated vaccinations would undermine public confidence in vaccines in general. The Program is the result of a compromise - streamlining the process for obtaining compensation and limiting damage awards in the interest of restoring public confidence in the policy of mandatory vaccinations. Another purpose of the Program was to induce vaccine manufacturers not to withdraw from production of vaccines.

This "compromise" requires the victims to be shunted away like a crazy aunt hidden in the attic, so that the public support for mandatory vaccinations is not undermined by a full public airing of the true costs in human lives. For the individuals involved, the costs are indeed high. While it could be argued that a small number of injuries or even deaths are worth the risks considering the epidemics which might be prevented, try explaining that to a mother whose child gave the ultimate sacrifice "for the good of the cause."

Whatever the policy reasons for establishing the Program, it is an imperfect vehicle for streamlining the process and limiting the litigation costs of victims. Claims are to be adjudicated within a year. However, unlike with workers compensation, social security and other similar programs, filing a claim without legal representation is risky because of the complexity of the process. Attorneys fees and costs may eventually be recovered through the Program but must be advanced by the claimant unless your legal counsel agrees to advance such sums on your behalf. Sole jurisdiction for adjudicating claims is vested in the US Court of Federal Claims, a court which sits only in Washington, DC. Even finding an attorney to handle a claim can be difficult, as an attorney must be specially admitted to practice before the Court of Claims, and the Program is virtually unknown to most attorneys. The salient fact is that federal law prohibits filing a civil suit until this claims process is completed, and such a suit is necessary if you elect not to accept the award.

Contrast this cumbersome process with the relative ease of filing a workers compensation or social security claim, or filing a bankruptcy case. Claims offices and courts are local and accessible, information concerning these programs is readily available, and qualified counsel is relatively easy to find. The difficulty of prosecuting a claim through the Program or a subsequent civil suit indicates that the "compromise" which gave rise to the Program is disadvantageous to victims. The strong government policy in favor of protecting public confidence in mandatory vaccines has been accorded such great weight that the rights of individuals suffer for the "common good". Every American, no matter how you feel about vaccination issue, should be disturbed by this state of affairs.
. . . Larry Harris

 

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ALL INFORMATION, DATA, AND MATERIAL CONTAINED, PRESENTED, OR PROVIDED HERE IS FOR GENERAL INFORMATION PURPOSES ONLY AND IS NOT TO BE CONSTRUED AS REFLECTING THE KNOWLEDGE OR OPINIONS OF THE PUBLISHER, AND IS NOT TO BE CONSTRUED OR INTENDED AS PROVIDING MEDICAL OR LEGAL ADVICE.  THE DECISION WHETHER OR NOT TO VACCINATE IS AN IMPORTANT AND COMPLEX ISSUE AND SHOULD BE MADE BY YOU, AND YOU ALONE, IN CONSULTATION WITH YOUR HEALTH CARE PROVIDER.