Could Criminal Penalties End the Vaccine Crisis?

By NORTIN HADLER, MD (5)

Overview: With the vaccine story in the news, the CDC published a field note last week detailing the disturbing details of the 2017 case of an unvaccinated Oregon boy who contracted tetanus.

In 2017, a boy aged 6 years who had received no immunizations sustained a forehead laceration while playing outdoors on a farm; the wound was cleaned and sutured at home. Six days later, he had episodes of crying, jaw clenching, and involuntary upper extremity muscle spasms, followed by arching of the neck and back (opisthotonus) and generalized spasticity. Later that day, at the onset of breathing difficulty, the parents contacted emergency medical services, who air-transported him directly to a tertiary pediatric medical center. The boy subsequently received a diagnosis of tetanus and required approximately 8 weeks of inpatient care, followed by rehabilitation care, before he was able to resume normal activities.

Nortin Hadler comments: I became interested in the notion of criminal culpability for overtreatment and for undertreatment when I was training at the MGH in the early 1970s. A child died at home of meningitis because the parents were following the precepts of the Christian Science church. Mary Baker Eddy in Victorian times and the Pentecostal Movement in Edwardian times were not entirely wrong in asserting that metaphysics was not “inferior to” allopathy for many a morbid state. The argument grew progressively tenuous with each decade of the 20th C. And Christian Science is dead wrong for many a morbid state since WW2.

Starting in the 1970s, the Christian Science Church and parents adhering to its precept to the detriment of their child have been sent reeling by convictions of manslaughter, felony child abuse and child endangerment across the country.    Furthermore, post facto legal remedies have ensnared parents and sects adhering to comparable precepts.

So why not make the withholding of the T of DPT a criminal act of omission a priori? The argument that tetanus is too rare to warrant such an assault on the Bill of Rights is sophistical. Tetanus is rare because of immunization with toxoid.

I was involved in caring for a patient (a migrant farm worker) with tetanus. It was a horrific saga with an improbable happy ending. It is likely that if you had your DPT series in childhood, you have lifelong immunity to T. (Nonetheless, I don’t argue with the common practices of boosting.) For T (and small pox and polio vaccines before we eliminated those endemics) the argument for mandating vaccination is powerful – I think incontrovertible. I’d make the argument for other vaccines but the argument has varying degrees of cogency.

I’ve also practiced in the South for 50 years. We’ve had more than one patient, usually an Adventist, who refuses indicated transfusions. Our hands are tied legally and we’re forced to manage fluid balance as best we can. I’ve not been involved in a case where the child needs a transfusion and the parent refuses. I suspect we could get a court order.

Overtreatment is an even more difficult legal concept. I coined the term “Type 2 Medical Malpractice” in the 1980s for doing the unnecessary. Type 1 Malpractice is doing the necessary poorly. A student of mine chided me; why not Type 3 for doing the unnecessary poorly. Type 2 Medical malpractice is epidemic in the U.S. which is why I seldom use the rubric. If it’s common practice, it’s not legally malpractice even if the science demonstrates overtreatment. Catch 22.

I’m not a lawyer, and aside from comp/disability law, not a legal scholar. I’ve got enough on my plate trying to be the best physician I can be. But there is much to contemplate in this arena.

Nortin M. Hadler, MD is a graduate of Yale College and Harvard Medical School. He joined the faculty of the University of North Carolina in 1973 and has been a professor of medicine and microbioogy/immunology since 1985. His assaults on medicalization and overtreatment appear in many editorials and commentaries and 5 recent monographs: The Last Well Person (MQUP 2004) and UNC Press’ Worried Sick (2008), Stabbed in the Back(2009), Rethinking Aging (2011) and Citizen Patient (2013).

5 thoughts on “Could Criminal Penalties End the Vaccine Crisis?

  1. Thanks for this. Nortin raises a great point about parental liability in law. Whereas we generally think about children being a parental responsibility, the state must step in when parents are being abusive or neglectful.

    In the case of vaccinations, politicians are trying to have it both ways. Politically, none of them want to get into a religious beliefs/parental choice battle but they’re scoring points by championing public health campaigns that, frankly, may be outdated and ineffective in the age of targeted misinformation.

    I wonder when U.S. politicians and courts will step in more forcefully for children below the age of majority via mandatory vaccinations and the like.

    Nortin, as for blood transfusions conflicting with religious beliefs, I think you might be interested in the Canadian Supreme Court case of A.C. v. Manitoba (Director of Child and Family Services).

    https://www.thestar.com/news/canada/2009/06/26/transfusion_law_constitutional_top_court.html

    1. Tough one. They wouldn’t be charged with a crime if harm results to their child as a result of the vaccine. Where there’s risk, there should be choice.

      1. Like starting destructive wildfires that require massive & costly emergency measures, people need to be held accountable for their decisions.

      2. Imagine a world where insurers start refusing to write policies in areas with low vaccination rates, as home insurers are now doing in the at risk fire-zone areas of California

      3. If rates go lower, I suspect vaccination will become mandatory to access public spaces and services. Not criminalization but de facto pressure.

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