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Legal Options When a Flu Vaccine Doesn’t Work

Legal Options When a Flu Vaccine Doesn’t Work
Each year millions of Americans get vaccinated against the flu. Yet even someone who has been vaccinated still can get sick. Although vaccines can reduce the severity of an illness, there’s always a chance that the vaccine simply won’t work, and hospitalization and even death can be the result. Someone who suffers this kind of unexpected illness may wonder if the vaccine manufacturer or healthcare provider could be legally liable for the damages resulting from an ineffective vaccine. The answer to this question may hinge on whether an intervening act of negligence rendered the vaccine ineffective.

Properly stored and administered vaccines are not a guarantee

According to the Centers for Disease Control, the flu vaccine’s effectiveness varies from year to year and from patient to patient. There are a host of reasons why this is true. One significant factor is the way each batch of vaccine is designed. Ideally, a vaccine is based on the form of flu that becomes prevalent in a given year. But anticipating which form of flu will become most prevalent involves a degree of guesswork that sometimes misses the mark. The effectiveness of a vaccine also varies by flu type: influenza A(H1N1) and influenza B viruses seem to be controlled more easily than influenza A(H3N2) viruses. The inherent limited effectiveness of vaccines means that they are not a guarantee against illness. At best they improve the patient’s chances of staying healthy, and when applied to a significant number of people they protect the general population against an epidemic. This has an important implication for someone thinking about filing a lawsuit after getting sick. If each person in the chain of a vaccine’s life—from the manufacturer to the healthcare provider who administers the vaccine to patients—has acted with due care, it may be difficult to make a legal case.

Negligence in manufacture or handling

Something more than just a failed vaccine must be present for a personal injury lawsuit to go forward. Most personal injury suits claim that the defendant acted negligently. Negligence involves a failure to satisfy a duty of care toward the plaintiff. In a vaccine context, what might this involve? Here are some hypotheticals.
  • A vaccine manufacturer uses an incorrect formulation that renders the vaccine completely ineffective and fails to discover the problem in its quality control processes.
  • A healthcare provider fails to properly store the vaccine (for example, by storing it at too high of a temperature), destroying its effectiveness before it is administered.
  • A healthcare provider administers an expired vaccine.
Another challenge for potential plaintiffs is the need to show causation between the defendant’s negligence and the plaintiff’s injury. Except in rare cases of severe reactions, like Guillain-Barré syndrome, a vaccine doesn’t cause disease. Overcoming issues like this requires the expertise of an experienced personal injury attorney. The law firm of Greenman Goldberg Raby Martinez has served clients in the Las Vegas area for over 45 years. Our attorneys are available to answer your personal injury questions. For a free consultation reach out to us today at 702-388-4476 or contact us through our website.

How Mental Illness Affects Liability for Personal Injury

How Mental Illness Affects Liability for Personal Injury
People suffering from mental illness sometimes injure others. From the standpoint of criminal prosecution, a defendant’s mental illness can be a defense against conviction or alter sentencing. But when a mentally ill individual causes personal injury, the injured person may wish to pursue a civil lawsuit to seek compensation for the costs of recovery.

Mental health and negligence

A personal injury case usually focuses on whether the defendant acted negligently. For negligence to apply, the defendant must have owed the plaintiff a legal duty of care, and breached that duty by acting, or failing to act, as a reasonable person would under the circumstances. Generally speaking, a mentally ill person is not freed from legal obligations solely because of mental illness. The standard for civil responsibility is lower than the standard for criminal liability. For example, a driver has a legal duty to drive in compliance with traffic laws. If mental illness causes a driver to run a red light or swerve into oncoming traffic, the question may be whether the person should have been driving at all. One reason for the reasonable person standard in negligence cases is to free civil trials from the complicated task of evaluating the specific defendant’s capacity to act, or not act, in compliance with his or her legal duty. Because it is an objective standard, the reasonable person rule may offer little help to a mentally ill defendant whose illness caused negligent behavior. Unlike a criminal trial, the defendant’s intent or lack of intent to behave a certain way usually doesn’t factor into the question of negligence.

Health professionals have no “duty to warn” in Nevada

When a potentially dangerous person causes injuries, questions may come up about whether other people who knew about the danger may bear some responsibility. Many states have laws governing the duty of health professionals to warn others about risks posed by a potentially violent, mentally ill patient. In some states, like California, psychotherapists are obligated to warn people who may be threatened by a patient. But Nevada has no such rule. Absent a rule requiring such disclosures, medical professionals are bound by strict confidentiality rules that prohibit them from disclosing a patient’s mental health condition. Without a patient’s consent, a health care provider in Nevada can only disclose records to a patient’s next-of-kin, or to state investigators in limited circumstances. NRS 629.061. Significantly, a plaintiff in a civil lawsuit can’t demand health records unless the patient (or the patient’s representative) first raises the issue of mental health. The federal Health Insurance Portability and Accountability Act, or HIPAA, also restricts when a healthcare provider can breach a patient’s confidentiality rights.

Consult with a personal injury lawyer

For over 45 years the law firm of Greenman Goldberg Raby Martinez has represented clients in the Las Vegas area in cases involving personal injury. If you have been injured by someone who suffers from mental illness, our attorneys can answer your legal questions. To speak to an attorney at no cost, please give us a call today at 702-388-4476. We can also be reached through our contacts page.