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Q&AZ: Is There Legal Liability For Not Getting Your Child Vaccinated In Arizona?

By Bret Jaspers
Published: Monday, May 27, 2019 - 10:15pm
Updated: Wednesday, June 10, 2020 - 11:47am
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Q&AZ is supported in part by Sierra Nevada Brewing Company

Arizona law says children must be vaccinated in order to attend school, unless parents or guardians get an exemption because of a personal belief or medical condition.

But if another kid (or an adult) gets a preventable disease as a result of an exemption, is the state, school, or parent legally liable? A listener asked via our Q&AZ reporting project.

The short answer: it’s unlikely any such lawsuit would be successful.

Of course, anyone can sue someone else and try to win a case, said attorney Hope Kirsch. After a suit is filed, however, a court will decide “whether it has a good faith basis.” That’s a steeper hurdle.

Kirsch, who typically represents schoolchildren and their families, points out state statute makes schools and their employees immune from civil liability over vaccine exemptions if they perform duties in good faith.

“So then the question becomes, [did] the school official or the person who’s tasked with reviewing the immunization of children [have] a good faith basis to allow the non-immunized child there?” she said. “Was the personal belief satisfied? That’s generally a question of fact.”  

What about suing the parents for making the choice not to immunize their child?

“They’d have to show that the parent was being irresponsible to another child. So then it becomes, which child is more important, or which belief is more important?”

Responsibility is also a tough thing to prove.

“Even if a kid came up and licked another kid on the face and [that] kid turned out to be sick. Did they intend to do that? I think there would be a whole host of legal hurdles that you would have to get over,” said lawyer Lynne Adams, who typically represents schools. “My guess is they would be really insurmountable.”

There is also the question of which child actually caused the injury, something that would be difficult to determine.

States themselves are generally immune from liability, making any suit against the Arizona Legislature for passing exemptions to school vaccine requirements likely to fail.

Residents can challenge a law by saying it’s unconstitutional, although they would need to point to and explain which part of the Arizona or U.S. Constitution is being violated.

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