Needles in the H1N1 Haystack

When children are accidentally vaccinated at school without parental consent, compensation may be hard to find.

Daniel Acosta of Port Charlotte, Florida, never signed the consent papers that would have allowed his four-year-old daughter to receive the H1N1 vaccine at school. And without parental consent, he assumed his daughter would not be vaccinated. “[S]o I was pretty surprised… when she rolled up her sleeve and showed me the band-aid, and when I removed it – I saw the swelling and the redness.” Mr. Acosta’s daughter had been vaccinated with the H1N1 vaccine, without his consent. If she were to suffer an adverse reaction to the vaccine, federal and state provisions would provide some compensation for her injuries. But do parents have any legal recourse when children are vaccinated without their consent, yet experience no proximal injuries? In light of the immunity provisions that protect vaccine administrators, and the limitations of available vaccine compensation programs, legal remedies for parents when children are accidentally vaccinated at school may be difficult to find.

The history of United States school vaccination programs and policies dates back to the 1860’s. Incidents of parental non-consent or resistance have always been a natural component of school vaccination programs, for myriad reasons – from pre-determined allergic reactions in particular children, to religious beliefs, to fear of vaccine side-effects. The H1N1 school vaccine programs that took place around the country over the past year have yielded the most recent examples of these errors, resulting in parental and to some extent, public, outcry, as well as raising questions about the extent of the administrators’ liability, and the parents’ avenues for compensation, particularly when injuries from accidental vaccinations are not immediately apparent.

This article will discuss several facets of the issue of school-located vaccinations. Part II will begin with a general history of school vaccination programs and background on the school-located H1N1 vaccine programs administered since the vaccine became available in the fall of 2009. Part III of this article will discuss immunity provisions for vaccine providers, and resources for injury compensation for vaccine recipients who experience adverse affects or injuries from their inoculations. Part IV will discuss the largely non-litigated area of liability and causes of action pertaining to incidents of vaccines mistakenly given to children contrary to parental consent that do not result in any immediately apparent injury.

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