Todd W. of Harpocrates Speaks asked me and Popehat (my favorite law-related blog) to comment on a heartwarming story that he posted on his blog. Popehat said that it wasn’t his area of law, and that he’d have to research it. Unlike Popehat, I have no qualms about recklessly stabbing in the dark to come up with comments on something in which I have little expertise and on which I have done little research. To be fair to myself, though, I actually have some expertise in child abuse and neglect, and I currently work in a position where I deal with a very wide variety of legal topics.
So the story goes like this: A couple of months ago, at a day care far, far away (Todd does not say where), four children came down with chicken pox. Three of the children were above the age for vaccination, and one 6-month-old child, too young to be vaccinated, also came down with the disease. Two women on the staff at the daycare were pregnant, putting them and their unborn children at risk, especially since one of them did not know if she had been vaccinated against the disease.
Apparently, the day care required that all children be immunized, and the parents of the infected children had reported that the children were immunized, even providing documentation of the vaccinations. Todd says that the parents “faked” the vaccination records of their children to get them into the daycare, and that the daycare was not too careful about verifying the records.
A commenter then asked, “Could there be some kind of legal action taken against the parents who faked the immunization record?” We’ll take a look at criminal and civil liability here. I’m going to limit my answer to the question that was asked, which focuses on the faked immunization record. For an examination of the possible liability that parents face for failing to immunize their child if the child then gets sick and infects someone else, see Jann Bellamy’s post on Science-Based Medicine a year and a half ago.
Because laws differ from state to state in the U.S., I’m going to have to discuss this very generally, especially since Todd wouldn’t say where the day care was. Lawyers reading this will probably be saying to themselves, or shouting out loud, “No! Wrong! That’s not the whole story!” I know; I’m trying to simplify things here. As always, don’t take what I’m saying as legal advice. If you face a similar situation yourself, go see a lawyer.
Civil Claims
The tort, or private/civil wrong, that the parents may be liable for is intentional misrepresentation or fraud. To win a case for intentional misrepresentation or fraud, the plaintiff basically has to prove that the defendant knowingly made a false statement for the purpose of getting the listener/reader of the statement to rely on it, that the listener/reader reasonably relied on the statement, and that the listener/reader suffered some harm/injury to person or property as a result.
I think that here the day care, but not other parents or day care staff, may have a shot at winning on a fraud claim against the non-vaccinating parents. The facts that we have say that the parents knowingly made false statements–the false documents showing vaccination–to the day care that their children were vaccinated. They did it in order to have the day care accept their children into the program. If the fake documents were realistic enough, then the day care probably reasonably relied on the statements. If the day care suffers any loss as a result, they should be able to recover those damages from the parents. To tell the truth, I can’t really imagine that the day care would suffer much loss from this. Perhaps they would have to hire subs for sick workers, or will be liable to the parents of any other kids who contracted the infection, but I doubt it (for reasons that I don’t have time to get into here). The day care would not be liable in any lawsuit by its workers; workers’ compensation laws would cover any illnesses or injuries by the workers and the day care would be immune from suit by its employees.
I don’t think that the parents would have any liability to other parents for the false statements, because the parents didn’t make any statements to the other parents. They made the statements only to the day care.
I can’t think of any other basis for a lawsuit by anyone for the parents’ act of falsifying the vaccination documents. If anybody has any other ideas, I’d love to hear them.
Criminal liability
Again, it depends greatly on what state we’re in whether the parents might have committed some crime here. State laws are surprisingly different when it comes to crimes. Just for fun, I randomly picked a few states and took a quick gander (I mean a casual look, not a fast male goose; I would never steal a goose) at their criminal laws to see if there was anything I could find.
The type of crime I was looking for was fraud or criminal misrepresentation of some sort, perhaps including forgery offenses. I’m sure that the vaccination documents are not sworn, so I didn’t bother to check for perjury offenses.
New York, in section175.05 of its penal law, defines the crime of “falsifying business records in the second degree” to include when a person, “with intent to defraud . . . [m]akes or causes a false entry in the business records of an enterprise.” From the definitions earlier in the penal law, I think the day care would be an “enterprise,” and I think the parents might be liable for “causing” the false entry in the day care’s records.
I couldn’t quickly find any applicable fraud crime in Illinois. All of the Illinois fraud crimes that I could find involve financial fraud.
Colorado Revised Statues section 18-5-104 says,”A person commits second degree forgery if, with intent to defraud, such person falsely makes, completes, alters, or utters a written instrument” that is not specifically covered by statutes defining other kids of fraud.
The New York and Colorado statutes could be used to prosecute parents who falsify vaccination records. In other states, like Illinois, there may be no law that specifically prohibits falsifying that kind of document.
I’d be surprised if any prosecuting attorney would take this kind of case. I could not find any news article of a parent being charged for fraud involving a vaccination record.
Conclusion
As much as I hate to say it, it appears unlikely that the parents who falsified the vaccination records will face any real legal consequences from their fraud. I can only hope that some brave prosecutor realizes the risk to public health that these parents created and charges the parents accordingly–if they live in a state that has laws that prohibit this kind of fraud in the first place.
The Skeptical Lawyer 
Thanks for offering some ideas on the types of legal issues that could potentially come into play. I kind of figured that, legally, there wasn’t really all that much that could occur. One thing you mentioned that got me thinking, if the day care failed their own due diligence in ensuring that the immunization records were accurate and, as a result, lose their license, would that constitute actionable harm in connection with the parents’ allegedly falsifying the records (i.e., damages that they could try to recover)?
Fascinating, though infuriating! Thanks for walking through the analysis.
Vaccinated children still can catch the chicken pox! They aren’t 100% effective. Just because a child catches the pox doesn’t mean they lied about their records.
You’re not kidding. It was probably the recently vaccinated shedders that kindly gave everybody the illness.
There are five known cases of communicable chickenpox resulting from varicella vaccination. That’s out of 55 million doses of vaccine given. (see http://shotofprevention.com/2012/11/20/the-chicken-pox-vaccine-and-shedding-concerns/ )
Even if we bent over backwards to entertain antivax fantasies and pretended that the ‘true’ rate was actually 100 times that, we’d still be talking about odds of transmission poorer than 1 in 100,000.
Do you think that wild-type chickenpox has a probability of transmission that’s poorer than 1 in 100,000? Do you think an abysmal infection rate like that is how it’s continued to circulate for centuries? No?
Then the scenario where the infection “probably” occurred by a route with a likelihood on the order of millions-to-one odds, rather than by wild-type varicella virus doing what it does *very well*, thank you, is utterly absurd. You simply can’t reach a conclusion like that through logic. It’s not possible.
Frankly, the scenario where the antivax parents who were delighted that their children got “natural” chickenpox had actually given their children the required vaccination is even more implausible when you realize: they’re not telling this story. That doesn’t make sense, does it? If you never wanted to vaccinate your children, and you reluctantly did so anyways, and then they got the very disease they were vaccinated against, wouldn’t you publicize it? Wouldn’t you be showing everyone the confirmation from your doctor that you had indeed vaccinated your children, and saying “See? Isn’t this evidence that vaccination doesn’t work??” Why aren’t we hearing from them? Isn’t the most likely scenario that they did what antivax parents regularly discuss doing on Facebook groups, falsifying immunization records?
I don’t know about US law, but Canadian law recognizes claims brought by third parties for misrepresentations made, where reliance on those misrepresentations by the third parties is deemed reasonable and reasonably foreseeable. Arguably, reliance by other parents on accurate statements about one’s kids’ vaccination status is foreseeable.
Antaeus Feldspar can you say that it is a fact that vaccines play no part in any percent of autism cases? Is it not possible that some percent of cases have been triggered by vaccines? As the triggers are not all known. Can you say its fact that vaccine have never and will never trigger autism?
Yet an important fact you o fail to mention is vaccine do have side affects, Some of them with tragic results! I am not talking about autism, No I am not, I am speaking of other case were children have allergic reactions that cripple them for life.
So Antaeus Feldspar what you are asking of every single parent is to put their child at risk, maybe a small risk? maybe not? But what in fact you are asking them to do is put the welfare of your children before the welfare of theirs. I wouldn’t ask you to risk your children to save mine.
Which in fact! is what you are asking other parents to do. That is fact!!!
I chose to vaccinate, but that was my choice no one Else’s, I do not believe it is my right or yours to force others to give up there parental rights.
That is a Fact.
I hope you will consider what I have said.
Sean G.
> Antaeus Feldspar can you say that it is a fact that vaccines play no part in any percent of autism cases? Is it not possible that some percent of cases have been triggered by vaccines? As the triggers are not all known. Can you say its fact that vaccine have never and will never trigger autism?
The burden of proof is upon those who DO think vaccines have ever caused autism to prove it, before it’s incumbent upon anyone else to disprove it. You can’t say it is a fact that aliens DIDN’T cause autism with a secret broadcast facility built on the moon in 1756 – but if I tried telling you that you have to give great weight to the ‘lunar broadcast hypothesis’ until you can prove it’s absolutely false, I would hope you could recognize that ‘any crazy idea someone comes up with, they don’t have to prove it, everyone else has to disprove it to nineteen decimal points’ is silly.
> Yet an important fact you o fail to mention is vaccine do have side affects, Some of them with tragic results! I am not talking about autism, No I am not, I am speaking of other case were children have allergic reactions that cripple them for life.
Making your entire digression upon whether we can falsify your unfalsiable* hypothesis that out of several million children who have been autistic since the world began, some number of them greater than zero might possibly have not been autistic without vaccination, entirely irrelevant.
* “Unfalsifiable” probably sounds to you like it’s a good thing. It doesn’t mean your guesswork must be true. It means that you’ve constructed it such that, even if it’s the falsest thing in the world, you’ll never know.
> So Antaeus Feldspar what you are asking of every single parent is to put their child at risk, maybe a small risk? maybe not?
PROVABLY a small risk. If you don’t understand the burden of proof, I doubt you understand the law of large numbers. Nevertheless, the law of large numbers means that unless all rules of probability in the universe have gone absolutely haywire on an unimaginably large scale (hint: they haven’t) then the risk of your child getting severe reactions from a vaccine are far less than the risks you take everytime you take them on a car ride.
By the way, would you like to point out where I’m “asking [something] of every single parent”? Oh, I didn’t? You just think it’s okay to ASSUME that I must be asking that? Well, you shouldn’t. You don’t understand the burden of proof; you don’t understand the law of large numbers; thinking that you know the answers which will result from a thought process you yourself can’t explain is just foolish.
> But what in fact you are asking them to do is put the welfare of your children before the welfare of theirs. I wouldn’t ask you to risk your children to save mine.
Then your grasp of ethics is as underdeveloped as the grasp of logic that causes you to misplace the burden of proof. I would be absolutely ASHAMED of myself as a parent if I taught my children “Even if you can play a BIG role in keeping others safe, and the only risk you run in doing so is less than you’d gladly accept without a second thought for a pleasure activity – screw those other people! Watch out for you and yours only!”
> Which in fact! is what you are asking other parents to do. That is fact!!!
You have a very poor grasp on what constitutes “fact”.
> I chose to vaccinate, but that was my choice no one Else’s, I do not believe it is my right or yours to force others to give up there parental rights.
> That is a Fact.
Again, unless you are in fact trying to impress us with the idea that you yourself understand your own reasoning process, then no, nothing in what you have just said is “a Fact”. If I say “I believe that chocolate is the awesomest flavor, and that is a Fact”, nothing about chocolate BEING awesome has been proved factual; only the fact that I believe it can be declared a fact.
> I hope you will consider what I have said.
I do. I consider it naive.
Antaeus Feldspar
Law and Ethic are not one and the same.
So you do agree their are risk. These risk are fact. But because you believe the risk small then others should do as you do and risk their children. this fact wont disappear with your secret moon base radio distraction! Are you a magician? You also make a grand statement about teaching your children to sacrifice for the greater good. If the risk is small an safe as a pleasure activity? Its easy to be brave when you feel no risk, as you do! So What I read between the lines is anything more dangerous then a pleasure activity then you wouldn’t be ashamed to put your family first and screw the rest of us! Oh I think my grasp of ethics is doing just fine.
I am not so naive to believe you a paragon of ethics.
> So What I read between the lines is anything more dangerous then a pleasure activity then you wouldn’t be ashamed to put your family first and screw the rest of us!
See, there’s your problem. You have demonstrated conclusively you have trouble even correctly reading THE LINES. The idea that what you read “between the lines” means anything is laughable.
A bright sixth-grader can easily learn that the proposition “if p, then q” does not imply the proposition “if not p, then not q”. However, if there WERE someone in this discussion who actually WAS advising the position “if the risk is not lower than that of a pleasure activity, ordinary responsible people should NOT take that risk to spare others much greater risk of harm”, guess who would STILL be in no position to throw stones? If you guessed it’s the person who asserted ‘I and my family shouldn’t have to take ANY risk, no matter HOW small, on behalf of anyone else’, i.e., you, you would be correct! (Which would make a total of three times, as I figure.)
> Oh I think my grasp of ethics is doing just fine.
I don’t doubt it. It’s called the Dunning-Kruger effect. https://en.wikipedia.org/wiki/Dunning-Kruger_effect Whether the blog owner lets you go on as you’ve been going, publicly exposing the fact that you know nothing (and falsely believing “I must be pretty much right about everything, because I know of nothing which indicates I’m wrong!”) is between you and the blog owner.
You sir belittle others to esteem yourself. but i suppose the burden of proof is on me. your not concerned with right or wrong as long as your always right.
I have vaccinated, But I have also suffered! and continued to vaccinate, read into that what you may. You are not god all mighty or a person that should be allowed to take control of others freedoms.
You sir are a intellectual Bully. I do hope you see a Doctor for your Dunning-Kruger condition maybe theirs a Vaccine for it?
Haha you’re not a very skeptical lawyer if you wholeheartedly believe vaccines are ‘good’ just like the paid off experts say. Screw the right to informed consent without being under the duress. Now we have the duress of losing the right to public education you paid for via taxes – or the duress of losing your job if you don’t comply with mob rule. You lose the right to reject something that’s against your religion, like aborted fetal tissue derivatives in the chickenpox vaccine. You lose the right of ownership of your own body and determining what goes in it and what doesn’t. Skeptical lawyer hahahahaha – Idiot lawyer is more like it.
Reblogged this on autisticagainstantivaxxers.
Thanks for your review. This happened in an elementary school and sadly there was no brave person around who realized the risks.
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i wish people could discuss hard topics like this respectfully and without insulting each others point of view. we should all be sharing knowledge and information instead of trying to discredit what someone else has to say. just because you’re not face to face with someone doesn’t mean it’s okay to be an ass.