A question for the forum lawyers

[tube fanatic]

I'm not interested in starting another "forced vaccine" discussion.  What I want to know is why vaccine manufacturers should have no liability for harm caused by their products, especially since the government is quickly heading toward forced use if one wants to be a member of society (i.e. without vaccines public and private education as well as employment will be denied).  Is there any other area in which a manufacturer is held totally harmless?  The federal vaccine injury court is not funded by the manufacturers but rather the consumer who pays a tax on every vaccine administered.  And what incentive does a manufacturer have to produce a safe product in view of zero liability?  Thoughts appreciated!

 

http://articles.mercola.com/sites/articles/archive/2015/06/23/new-mandatory-vaccine-policy.aspx?e_cid=20150623Z1_DNL_art_1&utm_source=dnl&utm_medium=email&utm_content=art1&utm_campaign=20150623Z1&et_cid=DM79755&et_rid=1005983995

 

Maynard

[Marvel]

Did you ever find that dvd I mentioned?

 

Bruce

[oscarsear]

It's typical for people to wonder why their ER bill is astronomical.  All they know is that they had a need they considered emergent and went to the facility and got it checked out.  If is serious they get help.......... often very involved and timely life saving care.  If it turns out minor that gets evaluated and they go home.  They they see the costs and are outraged that an aspirin tablet goes for $500.  What they do not grasp are the costs of keeping that ER open and ready 24/7 to meet any demands expected to include major civil disasters.

 

Vaccines are similar.  Firms are tasked with formulating product for anticipated infectious diseases, manufacturing same in huge quantities, storing the product and making it ready for mass distribution at will.  If the pandemic does occur the product gets bought and used.  If not then the product is wasted.  The gov't is asking an industry to provide a public health service and the industry agrees with the proviso that some of the downsides are limited.  No drug is ever 100% harmless.  To suggest that the industry will use this accommodation to become reckless with quality control is quite cynical.

 

Society is interesting.  Now they are clamoring for hamburger flippers, etc to get paid $15 per hour for menial labor.  They accept the notion that real estate agents can make mega$$$.  What should a lowly nurses aide get paid for keeping elders cleaned of runny feces if burger boy gets $15/hour?  What should a surgeon earn if Joe Blow Real Estate mogul captures 1/2 $million$ selling houses?

 

Good healthcare is taken for granted.  People now abuse their own health presuming that medicine can readily mend any and all ailments and they are almost correct.  Then when nature reminds us of our human frailties as with Ebola, the world wrings its hands, points fingers and frets, and rightfully so.  There's another HIV monster brewing somewhere.  Let measles, polio or small pox back out of pandora's box and you'd really lament the consequences.  Infectious diseases once ravaged the world regularly.  Now that they are managed that tragedy has not been witnessed nor personally experienced.  Those who think they know better - don't.  Watch a baby die unnecessarily eaten by some microorganism a simple vaccination would've prevented and you too will rethink this issue.

[tube fanatic]

Bruce, I never did get to look for the DVD you suggested.

 

Oscar, your comments are always welcome and appreciated.  However, your parallel with ER care doesn't make sense to me as people who are injured by the care they receive there can sue the hospital.  Regarding your comments on vaccines, I can't feel sorry for an industry which has been guilty of massive fraud (even against our own government) and some of the worst crimes against humanity ever committed (Vioxx being just a grain of sand in that area- Merck and the FDA knew what that poison was doing years before it was pulled from the market.  And Vioxx wasn't under the liability shield).  Having no liability can easily result in no concerns about quality control.  You agree that "no drug is ever 100% harmless."  So, I have to ask you this- if the life of one child in, say, 5000 is saved by mass vaccination, how can that justify one other child in 5000 being killed by that vaccine?  As you are aware, there are subsets of the general population who should not be given vaccines due to immune system dysfunction and other anomalies.  Since there's no testing prior to administering a vaccine, how can that be justified?  Can we justify destroying the lives of even 5 kids due to life changing adverse reactions to save the life of one (you can project this out in any number of ways)?  Would you allow a surgeon to operate on you with your prior knowledge that no matter what he did wrong, possibly resulting in your needing a million dollars/year in care for you to stay alive, and knowing that your insurance would not cover the life saving treatments?  And as to your conclusion, "Watch a baby die unnecessarily eaten by some microorganism a simple vaccination would've prevented and you too will rethink this issue," I will take the counterpoint of watching a baby die from a vaccine which his/her parents didn't want, but were forced to have administered to avoid being put in jail and the child put in foster care.  This is why I asked the forum lawyers to comment on this.  I'm not aware of any other private industry which is totally shielded from all liability under all circumstances.  

Maynard  

 

Apologies for letting myself get pulled back into another "forced vaccination" discussion!  Let's all keep this on track and just consider the legal side of the issue of being liability-free.

Edited June 23, 2015 by tube fanatic

[oscarsear]

Maynard.............  it is estimated from prior vaccination data that there are roughly 100 allergy related deaths for 160 million vaccinations.  Your presumption of 1 in 5000 is - well - preposterous.  The risk of death from not having vaccines can be enormous.  Look at the Ebola virus epidemic last year.  No Ebola vaccines existed and it was the worst case scenario.......... and that reflects what once happened prior to vaccines with the more common pathogens.  Look at the mortality data for yellow fever building the Panama Canal.  Why do you think families once commonly had 15 children?  They reasonably expected half of them to die before the age of 10 and that was often the case.  

 

As for the business ethics of the pharm industry, that is likely a valid point..............  but they are not going to be tragically reckless just for the sake of brand name.  They cannot be associated with gross product failures.  As for children known to be immunosuppressed or allergic getting vaccinated - that is the failure of the frontline clinician - not the manufacturer of the vaccine.  High risk groups are well understood and pediatricians should do their utmost to avoid putting any of their patients in peril.

 

There were 41 deaths from measles in just 2014 among non vaccinated adults and children.  Those occurred in a populace that is largely vaccinated, so herd immunity still kept many safe.  Imagine the mortality if nobody was vaccinated and measles ran through the population?  

 

Your risk benefit analysis here is very skewed.

[jacksonbart]

^

Bingo

[tube fanatic]

Oscar, please see my edited comment about wanting to keep this on track from the legal viewpoint only.  You state the case very well, however, in saying "As for children known to be immunosuppressed or allergic getting vaccinated - that is the failure of the frontline clinician - not the manufacturer of the vaccine.  High risk groups are well understood and pediatricians should do their utmost to avoid putting any of their patients in peril."  And that is part of my complaint- those frontline clinicians are also totally shielded from liability even when they don't do their job!!!  The docs I know do not even discuss possible adverse reactions with parents prior to administering a vaccine.  Everyone involved with vaccines is totally shielded.  And I want to know why!   

Maynard

[derrickdj1]

First, step back and take a look at some historical data.  Whooping Cough, Polio, Rubella, Hep B , HPV and others have all caused serious morbidity and mortality.  These infection have hit population clusters and have devasted the lives of many families.  A lot of these diseases are on the rise and the only way to protect the public is to be proactive and requir the vaccinations.  The government has a fudiciary duty to protect the public.

 

Some legal protection should be given to the makers of vaccines so most of our supplies don't have to come from outside of the country.  Tort reform is long overdue but, will not happen.  Do some bad outcomes happen with vaccines, yes.  But, the devistation of wide spread disease will affect far more people and exact a higher price.

[oscarsear]

Oscar, please see my edited comment about wanting to keep this on track from the legal viewpoint only.  You state the case very well, however, in saying "As for children known to be immunosuppressed or allergic getting vaccinated - that is the failure of the frontline clinician - not the manufacturer of the vaccine.  High risk groups are well understood and pediatricians should do their utmost to avoid putting any of their patients in peril."  And that is part of my complaint- those frontline clinicians are also totally shielded from liability even when they don't do their job!!!  The docs I know do not even discuss possible adverse reactions with parents prior to administering a vaccine.  Everyone involved with vaccines is totally shielded.  And I want to know why!   

Maynard

It is a complex and emotional issue and should not be discoursed on myopically.  And 'yes' MD's shown to be incompetent in the conduct of their services can be sued for negligence.  These are serious public health concerns.  The whole is benefitted greatly by full participation of the entire group.  

[Jeff Matthews]

First, step back and take a look at some historical data.  Whooping Cough, Polio, Rubella, Hep B , HPV and others have all caused serious morbidity and mortality.  These infection have hit population clusters and have devasted the lives of many families.  A lot of these diseases are on the rise and the only way to protect the public is to be proactive and requir the vaccinations.  The government has a fudiciary duty to protect the public.

 

Some legal protection should be given to the makers of vaccines so most of our supplies don't have to come from outside of the country.  Tort reform is long overdue but, will not happen.  Do some bad outcomes happen with vaccines, yes.  But, the devistation of wide spread disease will affect far more people and exact a higher price.

 

This is incorrect.  The government does not have a fiduciary duty to the public. In fact, you will find that the general rule is that the government has sovereign immunity from the claims of members of the public.  With the starting point being sovereign immunity, we then carve out exceptions where the government can be held liable.  Those exceptions are somewhat few.

 

Realizing that there often is no reason to treat a government differently than the officials who run it (as to rules of liability to the public), the doctrine of official immunity was extended to... you guessed it.  Officials.

 

Also, tort reform happened a long time ago.  Caps were put on punitive (exemplary) damages.  Caps for medical malpractice were instituted to limit recovery for pain, suffering, disability, disfigurement and other non-economic damages.  In Texas, that limit is a mere $300,000.  I am sure in other states that passed tort reform limits, the limits are likewise modest there as well.

 

In product liability, I am rusty, but as I understand it, one of the concerns is with regard to product warnings. Another is product defect.  

 

There is a "state of the art" defense to claims for product defects.  Essentially, the defense is, "Society needs this, and it is as good as the current state of the art allows."  Once proven, the defense wins.  Makes sense.

 

As regards product warnings, the law is that you need only warn of risks which you know or ought to know exist.  As I understand it, deals have been cut legislatively and/or administratively which essentially provide that if a government-approved/required warning is given (where the government agrees the warning is sufficient), there will be no liability for failure to provide a different warning. In other words, the FDA specifies the warning language, and compliance with its requirements is, by law, considered a legally-sufficient warning.  Makes sense.

 

I am not saying there is no room for lobbying/corruption, etc. in this process, but there it is.

Edited June 23, 2015 by Jeff Matthews

[Max2]

_{Why is the EPA in the back pocket of Big Oil and Gas?}

 

_{Why High Fructose usage and not sugar?}

 

_{Why is Arsenic added to Chicken feed to make them grow faster?}

 

_{What about Brominated oils in our drinks?}

 

_{Why Obama care is not mandatory for our heads on the hill?}

 

_{Why is Mercury put in our kids vaccines???????  Gotta have the Mercury.}

 

 

 

_{Because we have a fair and just Government that look out for us, our future wellness and never themselves nor a hidden profiting agenda. They have a huge concern of Mortality rates and want us all to live 120 years on average. They know what is best and we should always listen to them.}

[tube fanatic]

Jeff, thanks for providing some legal perspective on this.  Oscar commented above that MDs shown to be incompetent can be sued for negligence.  However, from what I understand, that is tossed out when it comes to vaccines.  Take a look at:   http://www.statutes.legis.state.tx.us/Docs/HS/htm/HS.161.htm.

 

Section 161.001 states:  "(a) A person who administers or authorizes the administration of a vaccine or immunizing agent is not liable for an injury caused by the vaccine or immunizing agent if the immunization is required by the board or is otherwise required by law or rule."

 

So, to my layman's mind, there is zero liability.  And it seems that this applies to MDs, RNs, pharmacists, school nurses, or anyone else charged with administering the vaccines. 

 

Another corollary issue which concerns me is being able to administer vaccines to minors without parental involvement.  I don't know about Texas, but my understanding is that in California minors can be given Gardasil without any parental notification:  http://www.medscape.com/viewarticle/751366. 

 

So, I find this whole issue to be frustrating and confusing.  More legal input on this would be appreciated! 

 

Maynard

Edited June 23, 2015 by tube fanatic

[Guest Steven1963]

Because we have a fair and just Government that look out for us, our future wellness and never themselves nor a hidden profiting agenda. They have a huge concern of Mortality rates and want us all to live 120 years on average. They know what is best and we should always listen to them.

You forgot your /sarc tag.

[Jeff Matthews]

 

Jeff, thanks for providing some legal perspective on this.  Oscar commented above that MDs shown to be incompetent can be sued for negligence.  However, from what I understand, that is tossed out when it comes to vaccines.  Take a look at:   http://www.statutes.legis.state.tx.us/Docs/HS/htm/HS.161.htm.

 

Section 161.001 states:  "(a) A person who administers or authorizes the administration of a vaccine or immunizing agent is not liable for an injury caused by the vaccine or immunizing agent if the immunization is required by the board or is otherwise required by law or rule."

 

So, to my layman's mind, there is zero liability.  And it seems that this applies to MDs, RNs, pharmacists, school nurses, or anyone else charged with administering the vaccines. 

 

Another corollary issue which concerns me is being able to administer vaccines to minors without parental involvement.  I don't know about Texas, but my understanding is that in California minors can be given Gardasil without any parental notification:  http://www.medscape.com/viewarticle/751366. 

 

So, I find this whole issue to be frustrating and confusing.  More legal input on this would be appreciated! 

 

Maynard

 

Maynard, I am not sure I can answer all your questions without some legal research, but take a look at this:

 

Section 161.001 states:  "(a) A person who administers or authorizes the administration of a vaccine or immunizing agent is not liable for an injury caused by the vaccine or immunizing agent if the immunization is required by the board or is otherwise required by law or rule."

 

Take a look at the rules which require vaccines.  In those rules, are there exceptions?  For example, is there an exception to the requirement if the child's doctor can affirm that the child appears to be unusually susceptible to any vaccine?  Maybe there are some exceptions which would allow a lawyer to sue a doctor for malpractice, such as:  "Your Honor, the statute says there is no liability if the vaccine is required.  The vaccine was not required.  Because it was not required, Doctor Dufus is liable."

 

However, if the rules actually require the vaccine, then you are correct in that there will be no liability for administering the vaccine.  It makes you wonder about other forms of liability, too.  For example, what if the syringe was contaminated due to Dufus's negligence?  Is Dufus shielded?  I don't know.  What if Dufus broke the needle off into the child, causing an infection which leads to the child's permanent paralysis?  Is Dufus shielded?  I don't know.  There might be cases that have ruled on issues similar to these.

 

Regarding Gardasil, in Texas, Governor Perry signed an executive order requiring school-aged girls to get Gardasil vaccines.  This was a good handful of years ago.  There was enough backlash that he rescinded the order.  It is not required here.

 

As regards Oscar's comments, I tend to agree with the idea.  It is clear that vaccines work.  They can pose complications in a very small segment of people, and the problem from their perspective (and rightly so) is that they don't want to find out the hard way that they were members of that very small segment of people.  It's a tough call, but I think, at large, the issue is being handled fairly well.  I think if you raise enough cain or are clever enough, you can be excepted.  If that's right, then the effect is to except those who are pretty darn serious about it.  The others just give in and go along.  Bad or good, that's your call.  But I am glad we are in control of some historically nasty viruses.  

 

Along these same lines, this is why I don't mind rules which consider healthcare to be a right or make it a lot closer to being a right.  I'd rather sick people not be left to spread sickness simply because they are poor.  Even if their poverty is due to some loathsome conduct, I still would rather they be treated so they can't spread their conditions to us.

Edited June 24, 2015 by Jeff Matthews

[Max2]

 

Because we have a fair and just Government that look out for us, our future wellness and never themselves nor a hidden profiting agenda. They have a huge concern of Mortality rates and want us all to live 120 years on average. They know what is best and we should always listen to them.

You forgot your /sarc tag.

 

 

Figured that one was a gimee. Besides, I didn't add anything productive to Tube fans thread other than there is a lot of BS is the U.S.A. that makes no sense except for one small group or a mega industry and or company.  Lots of questions, lots of why's out there that beg for much more attention than a damn Rebel flag.  Better pull the Dukes of Hazard re-runs now and saying "Yeehah" might get your kid suspended. Colonel Sanders may need an attire reboot as well. 

[Travis In Austin]

Congress has given numerious industries immunity from civil liability in various forms, either limited liability such as recovery from a fund, limited liability, or blanket immuniry.

The best example is tobacco. Others include airlines/aviation, insurance companies, banking,automobile manufacturers, etc., etc.,

[dtel's wife]

Congress has given numerious industries immunity from civil liability in various forms, either limited liability such as recovery from a fund, limited liability, or blanket immuniry.

The best example is tobacco. Others include airlines/aviation, insurance companies, banking,automobile manufacturers, etc., etc.,

This is scary!

[Travis In Austin]

If you want the FACTS about this debate I suggestnyou go here.

http://vaccines.procon.org

If you want a good example of how conspiracy arguments get started and eventually debunked, here is a great article

http://www.forbes.com/sites/emilywillingham/2014/02/22/is-the-cdc-hiding-data-about-mercury-vaccines-and-autism/

[Travis In Austin]

I just remembered, gun manufactures and dealers were given immunity from civil damages if they negligently allow their guns to get in the hands of criminals. This was after the maker of the Bushmastwr ,223 auto had to pay 2.5 million to one of the D.C. Sniper's victims.

Atomic energy related fields have a great deal of immunity and limited liability.

The construction industry has been able to limit liability with statutes or repose.

Most ski area states eliminate any action against a ski resort operation.

[Paducah Home Theater]

Vaccines are similar.  Firms are tasked with formulating product for anticipated infectious diseases, manufacturing same in huge quantities, storing the product and making it ready for mass distribution at will.  If the pandemic does occur the product gets bought and used.  If not then the product is wasted.  The gov't is asking an industry to provide a public health service and the industry agrees with the proviso that some of the downsides are limited.  No drug is ever 100% harmless.  To suggest that the industry will use this accommodation to become reckless with quality control is quite cynical.

You make this sound like they have a burden that they involuntarily bear for the common good, mostly only due to being told to do so by the government. Make no mistake, they are voluntarily mining for something much more valuable than gold. One only needs to review the Ricky Perry and Gardasil shenanigans to realize this.

Edited June 26, 2015 by MetropolisLakeOutfitters