When I was a kid, I’d call my best friend Sara on my parents’ rotary telephone, ask her whether she wanted to play, and then hop on my banana seat bike and ride to her house. Alone, and usually without a helmet. Her parents had a swimming pool but my parents didn’t call ahead to make sure the fence was locked; my parents trusted her parents to keep an eye on us and stop us from being drowned. I have no idea if her parents owned a gun; if they did, I never saw it and I don’t think my parents asked if they had one, where it was stored, and whether it was locked up or loaded. (They should have, by the way). And my parents certainly did not ask whether Sara and her siblings were vaccinated; Obviously. Clearly. No doubt. Asking whether your child’s playmate was up to date on her MMR was like asking whether she was also fed and bathed.
Wow, how times have changed. Vaccination is no longer a simple childhood rite of passage. It’s a controversy. To vaccinate or not, that is the new question. And because of the increase in unvaccinated kids, along with an increase in diseases that were once eliminated in the U.S. (ie., measles), there is a growing conversation about the need to ask before you play. Should you ask whether Sally has been vaccinated before you invite her over? The argument in favor of this is pretty straightforward. Vaccines prevent disease. And, unfortunately, simply vaccinating your own child doesn’t guarantee protection. This is because if enough people in a community aren’t immunized, the prevalence of the disease rises and more individuals are exposed. The more people in your circle of friends who are not vaccinated, the greater the opportunity disease to pass from person to person.
This is why there are “cluster” outbreaks. For instance, in 2010, Marin County, California had a “personal belief” school exemption rate 7.1% and San Luis Obispo county had exemption rates of 5.2%. No surprise: rates of pertussis in those communities were far higher than for California overall. So when those who refuse vaccines argue that their right to refuse has no impact on anyone else, they are wrong. Plain and simple.
I’m on board with the suggestion over on Vaccinate Your Baby that parents may want to consider asking about the vaccination status of their kids’ playmates. I think it’s potentially a great idea and one whose time has surely come. This may be especially the case here in Ohio where we are #1, not for football (Go Buckeyes!) but for measles this year. But, ever the lawyer, I have to wonder. What if the other kids’ parents lie? What if you do your due diligence and ask about Sammy’s immunization status, and his parents don’t tell you the truth? Suppose you let your child play with Sammy and Sammy shares more than his lemonade? How can you know for sure?
You can’t. But don’t panic. First, you can probably trust the family to tell you the truth. People are very passionate on both sides of the vaccine aisle and, those who choose not to vaccinate (just like those who do) are usually not embarrassed about it. Google “parenting” and “vaccine” and you’ll come across any number of mothers who are loud and proud about their child’s unvaccinated status.
Second (and here’s where the lawyer in me comes in), if Sammy’s parents lie to you about Sammy’s vaccination status and your child gets sick, they may be liable. You see, despite all the freedoms guaranteed under the First Amendment, the constitution does not promise people the right to lie with impunity. A person who negligently misrepresents a fact, and thereby causes physical harm to another who reasonably relied on that statement of fact, can be liable for harm caused. (Restatement (Second) of Torts § 311(1)(a)(b)).
So, if for some reason, Sammy’s parents lied to you and your child did catch measles from Sammy, you might have a cause of action against Sammy’s parents for negligent misrepresentation. (There are potentially other avenues of liability against unvaccinated people, but that’s for another post).
Asking about the vaccination status of your kids’ playmates may feel weird. It’s ok to feel weird. It’s also ok to ask. Its your child’s life. Don’t apologize for trying to protect it.
And, remember, if you do get lied by some parent, and God forbid your child gets ill, there’s probably an attorney or two out there who might help you out.