The law has long recognized the need to prevent contact between unvaccinated and vaccinated children. But with anti-vaccine scares encouraging more adults to leave their children unprotected, the danger to the rest of us, young and old alike, has increased. The law is responding, most recently in the Supreme Court’s endorsement of the efficacy of vaccinations for the protection of public health.
We urge Maryland to take appropriate steps to protect the public health of its people. And we want health professionals to understand and explore the legal risks they face in accepting into their practices families who do not vaccinate their children.
While we do not go so far as to propose that Maryland directly compel vaccination, see Jacobson v. Massachusetts, 197 U.S. 11 (1905), the time may come when even that is necessary.
On Jan. 22, the Supreme Court held in Bruesewitz v. Wyeth that all private causes of action for alleged negligent design of vaccines were barred by the National Childhood Vaccine Injury Act of 1986.
The vaccine at issue in that case was the trivalent DTP, for diphtheria, tetanus and pertussis. For the trivalent MMR vaccine, covering measles, mumps and rubella, the special masters in the Vaccine Court established by the 1986 Act have, in Justice Sotomayor’s words, “uniformly rejected the alleged causal link between vaccines and autism.”
Perhaps even more important than the result in Bruesewitz is the court’s explanation of the critical importance of vaccinations to all of us: “[V]accines are effective in preventing outbreaks of disease only if a large percentage of the population is vaccinated.”
This is called “herd immunity.” As Professor Edward P. Richards III explained in his article in Litigation (Fall 2010): “This means that the individual’s risk of being infected and perhaps dying from the disease depends both on the individual’s vaccination status and the proportion of the community that has been vaccinated.”
In other words, when parents of a Maryland child fall prey to the junk science of vaccine denialism and choose to expose their own child to the possibility of disease, injury and death, they threaten the health of those children who have been vaccinated.
Maryland understands the importance of protecting children from contact with unvaccinated children, and of encouraging parents to vaccinate their children by restricting access to public and private schools to those who have been vaccinated. As far as proscriptive legislation is concerned, it may not yet be appropriate to go further. But right now the law can have a further impact in protecting the health of all Marylanders, and it should.
Evidence and common sense
With the publication of three new books, by Seth Mnookin, Paul Offit and Robert Goldberg, challenging the baseless fears about vaccination, the time has arrived for the forces of common sense not only to combat a host of preventable childhood and adult diseases, but also to challenge those who choose to keep the diseases alive.
The dramatic improvement in overall life expectancy is the result of two primary public health successes: the institution of modern sanitation techniques and the prevalence of vaccination. Smallpox is eradicated, and Bill Gates is committed to do the same for polio. Most of the attention in recent years has been focused on the measles-mumps-rubella vaccine, which is safe and effective in preventing those diseases commonly associated with childhood, but which can strike adults as well.
According to the National Foundation for Infectious Diseases, “Measles can cause life-threatening pneumonia and brain inflammation, middle-ear infection, severe diarrhea and sometimes death.” In addition to other harms, mumps can result in male infertility. Rubella in a pregnant woman can result in serious birth defects.
In short, there is nothing good about having these diseases, and there is nothing bad about preventing them.
The MMR vaccine works. It does not cause autism and never has, with or without the mercury-based preservative thimerosal. The British Medical Journal recently announced that the original article that claimed a linkage between autism and MMR was “an elaborate fraud.” With regard to each of the 12 children reported on in the study, the BMJ said: “In no single case could the medical records be fully reconciled with the descriptions, diagnoses, or histories published in the journal.” And the article’s author, Andrew Wakefield, has been stripped of his medical license.
The lack of any competent evidence linking autism to the MMR vaccine has been known for years. Yet, with each new careful analysis refuting the increasingly bizarre claims about MMR, misguided parents and purveyors of misinformation have continued to cling to this fantasy, including politicians from both sides of the aisle and celebrities, none of whom have competence in this area.
The medical community is charged with knowledge of sound science, of the irrationality of the opposition to vaccines, of the policy of the State of Maryland to prevent contact between vaccinated and unvaccinated children, of the rulings of the Vaccine Court, and of the consequences of refusals to vaccinate.
Vaccine refusal has been linked to the spread of whooping cough in 2003, a measles outbreak in 2005 and the spread of pertussis between 1996 and 2007. A 2009 article in The New England Journal of Medicine reported: “There is evidence of an increase in vaccine refusal in the United States and of geographic clustering of refusals that results in outbreaks.”
In a study of pediatrician attitudes on vaccine refusals published in 2005, the authors found that “[e]xperience from Europe as well as published studies in the United States suggest that increasing numbers of vaccine refusals pose public and individual health threats, endangering both unimmunized and immunized populations.”
Legislation and regulation
What responses should we consider in light of the persistence of vaccine denialism?
First, the General Assembly should bar hospitals from employing any person who is not protected against communicable diseases for which vaccines are available. That includes physicians on staff and with privileges. The American Hospital Association has endorsed the concept of immunization programs for both hospital personnel and patients.
The Advisory Committee on Immunization Practices for the Centers for Disease Control and Prevention states: “Because of their contact with patients or infective material from patients, many health-care workers … are at risk for exposure to and possible transmission of vaccine-preventable diseases.”
The General Assembly should apply the same rules to nursing homes, where not only is influenza a present danger to the life of residents, but where vaccinations do less to protect the elderly residents because of the phenomenon known as immunosenescence. And also to schools: no adult should be employed by any school in the state, public or private, who is not fully vaccinated.
Maryland already provides by regulation that hospital workers and volunteers working at least 20 hours must be vaccinated against measles and German measles. The ACIP goes further and recommends that health-care workers should be vaccinated against or have documented immunity to hepatitis B, influenza, mumps and varicella, in addition to measles and German measles.
Hospital-acquired infections, which include communicable diseases for which vaccines are available, are a particular problem in Maryland, which ranks close to the bottom among the states. The Abell Foundation reports: “According to estimates by the CDC, health care acquired infections occur 1.7 million times a year in the United States, resulting in nearly 100,000 deaths annually.” This is one area where we can do better.
Second, doctors may want to take further action on their own. Some pediatricians have announced that they will no longer take children as patients, and “fire” those they have, consistent with the demands of medical ethics, if their parents won’t vaccinate them. In a survey of pediatricians a couple of years ago, almost 40 percent said they would not provide care to a family that refused all vaccinations, and 28 percent said they would turn away families that refused some vaccines.
As a physician explained to the American Academy of Pediatrics, “In the middle of treatment, you can’t just say, I’m done … . But if it becomes obvious that you and the family will never see eye to eye on a specific issue, there’s no reason not to ‘fire’ them, providing you follow the steps necessary to avoid charges of abandonment.”
Physicians themselves appreciate the legal risks they face. One expressed concern about “the issue of medilegal implications. If one of my unimmunized children sits in my waiting room and infects an infant who is too young for immunization, if the infant gets sick and must either be hospitalized or dies, I could be theoretically liable, since I knowingly permitted this situation.”
In 2008, a family took their 7-year-old child to Switzerland, where he was exposed to the measles virus, which his parents had intentionally not vaccinated him against. The family returned to the United States where the son exposed 839 people to the disease, including 11 unvaccinated children who came down with it. Three of those were infants too young to have received the vaccine, and one of them required hospitalization.
Pediatrician waiting rooms, treatment rooms and corridors can be great ways of spreading illness unnecessarily to other children, to their parents and to staff.
Given the risks, parents who vaccinate their children should demand that the physicians provide an environment free from the risks of the presence of unvaccinated children. Pediatricians should seriously mull their options and make decisions guided by medical knowledge and their own commitment to the well-being of the families whom they treat.
Having an impact
Baltimore is a world center of medicine. What the Johns Hopkins Hospital and the University of Maryland Medical Center say and do have an enormous impact. Hopkins and University of Maryland doctors should consider their response to the increasing public health threat from vaccine denial. (However, even if this should lead them to refuse to take unvaccinated children as private-practice patients, the hospitals themselves, and all physicians when confronted by a child in need of urgent and emergency care, must act as required by the standards of the profession and help the child.)
Hospitals, nursing homes and schools should fire staff who will not protect themselves and their own children from communicable diseases for which vaccines are available, and not wait for the General Assembly to act. In many cases, health care workers are already required by their employers to be vaccinated against influenza.
Adults who refuse vaccination for themselves and their children contribute to the weakening of herd immunity that helps protect the broader society against fully preventable diseases. It is one thing to place a useless magnet on your knee and expect to get better, or ingest plain water and fantasize that it will combat disease; it is quite another to expose your child, and other children and adults, to disease and the potential for early death.
That is the truth, and the State of Maryland and medical profession should be blunt about telling it and acting upon it.
Editorial Advisory Board members Laurel Albin, Dawna Cobb, Donna Hill-Staton, Elizabeth Kameen, M. Natalie McSherry and C. William Michaels did not participate in this opinion.