Can parents sue the anti-vaxxers for this measles epidemic?

As measles sweeps the US, anti-vaccination campaigners have a lot to answer for. So why shouldn’t they be prosecuted for it?

Fifteen years ago, measles was all but wiped out across the USA. But this month, 70 cases across seven states have been reported — all linked to an outbreak originating in Disneyland, California last month.

Al Jazeera reports up to 1000 people, including almost 200 children, are now believed to have been exposed to the potentially fatal disease — which is so contagious that when one person has it, 90 percent of the unvaccinated people close to him or her will also become infected, according to the US Centers for Disease Control.

Is this the anti-vaxxer’s most creative scam yet?

The people who are infected are not just anti-vaxxers and their kids; what many don’t realise is that kids of pro-science, pro-vaccination parents are getting sick, too. The vaccine is only 99 percent effective, and babies under one year old also can’t receive the vaccines — so of the 34 Disneyland cases who have reported their vaccination history, six were actually vaccinated. In addition, six of the diagnosed cases in California were babies too young to be immunised, the LA Times reports.

Given the emerging public health crisis in the US, it’s clear that the anti-vaxxers have a lot to answer for. Now that their anti-science stance and dangerous ignorance is consistently making members of the general population sick, why shouldn’t they be sued?

That’s the question raised by the US website the Daily Dot asked today — and we think it’s a brilliant idea. So closer to home, asked an expert whether a legal claim against anti-vaxxers could ever be viable in Australia.

Related content: Measles outbreak following graduation ceremony. Unvaccinated kids in attendance.

Mamamia spoke to Slater & Gordon medical lawyer Nicholas Mann, who said that if the anti-vaccination advice came from a doctor, it’s possible a child who became sick as a result would have a claim.

“If a medical professional advises a patient not to immunise their child (without good medical reason such as an allergy or known adverse reaction), and the child contracts a damaging infectious disease as a result, it is entirely possible that the child would have a claim against the doctor,” he said. “The question for a court would be: what does reasonable medical practice require of doctors when advising patients about immunisations?”

He added: “Whether medical practice is reasonable is something which a court considers in each individual case, based on the evidence of medical experts.”

But what about if the advice wasn’t directly given to the patient; for example, if a doctor spread dangerous anti-vaccination advice on a tour (we’re looking at you, Sherri Tenpenny)?

“There may still be a right to sue,” Mr Mann tells Mamamia, “although succeeding in a claim like that would be more complicated.”

 Related content: So you never forget another vaccination appointment. EVER.

In the US, the Daily Beast reports, a claim may also conceivably be viable. A 2013 journal paper argued convincingly that if your child dies after getting sick because of another parent’s neglect, you could find that other parent legally responsible.

The author of the essay, published in the Journal of Law, Medicine, & Ethics, said the first hurdle would be to link causation of one child’s illness from another child’s unvaccinated status. But theoretically, “if a parent simply chose not to vaccinate his child and a death results,” the author concluded, “liability could certainly exist.”

Related content: Measles myths. Busted.

Regardless of whether such a lawsuit ever goes ahead, experts hope the latest outbreak provides the wake-up call anti-vaxxers need to begin taking medical science seriously.

Boston Children’s Hospital paediatrician Claire McCarthy told USA Today the recent epidemic “gives us a chance to have important conversations” about what vaccines do.

“These other measles outbreaks haven’t seemed quite real to people. Disneyland has made it real,” Dr McCarthy said.

Author of The Vaccine Book, paediatrician Bob Sears added in an interview with USA Today:”Because measles has been so rare in the past 20 years, parents had the luxury to forgo the vaccine without risking disease.

“When an outbreak occurs, that sense of security goes away,” Dr Sears added.

Today, as the potentially deadly disease continues to spread through the US — and we wait nervously to see if it will spread across international borders — it’s clearer than ever that rejecting science is never going to keep us safe.

Worse, anti-vaxxer’s reckless ignorance is putting innocent kids at risk — and that’s irresponsible and dangerous.

So if it takes is a lawsuit against anti-vaxxers to stop them putting kids’ lives at risk: We say, bring it on.

Symptoms:

Measles begins with a fever, sore red eyes, and a rash which appears after three or four days. It usually lasts several weeks and about 30 percent of people with measles develop a complication such as ear infection, diarrhea or pneumonia. Among children, one in 1,000 suffers brain inflammation, and one or two out of every 1,000 die. For more information on measles symptoms, see this post.

Vaccinations:

Measles vaccination is recommended as part of routine childhood immunisation.

It is listed on the National Immunisation Program (NIP) Schedule and funded for children under the Immunise Australia Program.

To receive measles immunisation, visit your local doctor or immunisation provider. Immunisation against measles is achieved using the MMR and MMRV combination vaccines.

The first dose is given at 12 months of age as the MMR vaccine and the second dose is given at 18 months of age as the MMRV vaccine.

If your child is aged over 18 months at 1 July 2013, they will receive the second dose at four years of age as the MMR vaccine, as per the previous NIP schedule.

This schedule point will remain until 31 December 2015.

Babies who are travelling before their vaccines are due can be given the first dose as early as nine months of age.