Legal background

In its decision, the appellate court considered the intent of Congress in enacting the federal law. The court cited language in the PREP Act that specifically provided liability protections for pandemic countermeasures taken by “covered persons” (in this case, clinicians).

The Act specifically provides that “a covered person shall be immune from suit and liability under Federal and State law with respect to all claims for loss caused by, arising out of, relating to, or resulting from the administration to an individual of a covered countermeasure” pursuant to a declaration of, among other things, a public-health emergency.

Although the child’s mother argued that administering a vaccination without consent voids any and all immunity under the law, the court did not agree. In fact, the court concluded that it was the intent of Congress to preempt all state law tort claims arising from the administration of immunizations—even when there was a failure to obtain consent.

The court specifically noted that Congress had created an alternative administrative remedy—called the Countermeasures Injury Compensation Program—to compensate people injured by countermeasures taken in response to the declaration of a public-health emergency. In addition, said the court, a person who suffered death or serious physical injury caused by willful misconduct of a clinician would still have a cause of action in federal court.

The court was not persuaded by Mrs. L’s arguments that Congress would not have intended to protect such a radical action as immunizing someone without consent. “It is not our role to speculate upon congressional judgments,” wrote the presiding judge in the court’s decision. “Rather, we must presume that Congress fully understood that errors in administering a vaccination program may have physical as well as emotional consequences, and determined that such potential tort liability must give way to the need to promptly and efficiently respond to a pandemic or other public-health emergency.”

The court concluded that the plaintiff’s state law claims for negligence and battery were preempted by the PREP act, and that the state court had no jurisdiction over the matter.

Protecting yourself

This was an unusual case, although it may be one that we see more often as new strains of influenza threaten our population. Ms. P was not liable because she had acted in accordance with a federal act, and that act trumped state law.

However, it is important to remember that under normal circumstances Ms. P could have faced a lawsuit, and potential liability, for vaccinating a child without the parent’s consent. If you work with children or in a school, remember that parental consent is always necessary, except in the most extreme of circumstances.

This article originally appeared on Clinical Advisor