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Vaccine stuff has been in the news lately. It occurred to me that telling people not to get vaccinated could constitute medical advice.

Here is my question: if someone tells you not to get vaccinated, and then you get really sick with something you could have been vaccinated against: can you sue them? If so: why do I keep hearing about "anti-vax communities" and "anti-vax propaganda"? Why haven't these people been sued out of existence?

(this does not affect me personally; I have been vaccinated and I am not sick)

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    Its really that it is free speech. If you tell me the sky is purple, I can't sue you can I? – Putvi Apr 10 at 23:26
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    @Putvi I don't think that freedom of speech is applicable in this situation, I believe the OP is trying to find out if you can sue someone for giving you a serious illness if they could have taken steps to prevent it, and were knowable that they were carrying that illness. – User37849012643 Apr 11 at 15:41
  • We as a community need to know the location that this question applies to, so we can look up the laws for that area. For example: in the United States you can be tried in both civil and criminal court if you knowingly transmit HIV (Aids) to someone else without them knowing, but recently, in California laws have been passed so you no longer have to notify the other party before taking part in a sexual activity. Knowing what country it takes place in isn't always enough, to answer this question we need to know a specific location. – User37849012643 Apr 11 at 15:50
  • I think you want to be asking about unauthorized practice of medicine or practice of medicine without a license. As others have noted, only a licensed medical practitioner can be liable for medical malpractice. – phoog Apr 11 at 16:25
  • @phoog I think he just means people in general. – Putvi Apr 11 at 16:33
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Merely encouraging people not to vaccinate via educational and political communication without purporting to provide individualized medical advice is probably not the practice of medicine and protected by the First Amendment's protections for freedom of speech, rather than constituting medical malpractice.

Also, many anti-vax individuals (I couldn't quote a percentage) do so out of religious conviction and are protected not just by the freedom of speech in the First Amendment, but also by the free exercise component of the freedom of religion under the First Amendment. Generally speaking, it is harder to find a legal grounds for disregarding the free exercise of religion than it is to find a legal basis to regulate otherwise free speech.

For example, commercial speech is subject to more rigorous regulation than private political and educational speech, which is why there are no private businesses taking anti-vax positions in their advertising.

The theory is that courts are not in a good position to make general determinations of the truth of policy positions or statements about general truths as opposed to what happened in a particular transaction or occurrence. This is in part because a ruling by the right court at the right time can preclude the correctness of its determination from being revisited indefinitely and from time to time, accepted conventional wisdom and scientific consensus at one time are revealed later on to have been wrong with more discussion and investigation. I think that this is unlikely to be the case in the vaccination area, but the whole point of the First Amendment's protection of these kinds of issues is that we can't know in advance what will continue to be widely accepted and what will turn out to be mistaken.

But, if someone in a medical diagnosis and treatment profession (e.g. M.D., D.O., physician's assistant, or nurse), were to advise a patient in a capacity as a medical care provider not to vaccinate, and as a result that person's child got sick from a disease that vaccination could have prevented, there probably would be medical malpractice liability.

A somewhat similar issue arises when health insurance companies or government agencies set rules on providing care. In those cases, it isn't uncommon to have a physician or other medical professional placed on a committee or in an office such as medical director, with that person making the call and exposed to liability although not in the same way as a treating medical professional. A case about a month ago found malpractice by an insurance company's medical director (the company was United Health) to be a huge liability for both the medical director and the insurance company.

  • I don't mean to criticize, but nursing malpractice is normally when a nurse preforms some procedure wrong and not giving only wrong advice since advice is supposed to stem from a doctor. nolo.com/legal-encyclopedia/nursing-malpractice-30076.html – Putvi Apr 10 at 23:37
  • @Putvi it is generally malpractice for a nurse to give advice at all when the nurse doesn't have the authority to do so (leaving only causation and damages which limits suits to cases when the advice is bad), and some nurses (e.g. nurse practitioners) have diagnostic authority in their specialty. It isn't uncommon for vaccination to be handled almost entirely by nurses in some jurisdictions. – ohwilleke Apr 10 at 23:42
  • @Putvi registered nurses can and do provide advice (as do physiotherapists, occupational therapists, doctors etc.) and are subject to the same consequences for bad advice. – Dale M Apr 10 at 23:44
  • Surely there is some threshold with regard to the unlicensed or unauthorized practice of medicine that someone who is not a medical professional might cross in "telling [someone] not to get vaccinated." – phoog Apr 11 at 16:19
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    Right, so my point is that an anti-vaxxer (not in possession of a medical license) who tries to discourage people from getting vaccinated by purporting to assess their medical condition and then giving individualized advice against vaccination would potentially be liable. In other words, I'm thinking of cases that do not fall within the qualification in your first paragraph. – phoog Apr 11 at 16:42
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This would not even be a case of medical malpractice, unless this person was a licensed mefical professional.

If they misrepresented themselves as a medical professional, other laws might allow you to recover damages.

But otherwise, their words are honest opinions afforded full First Amendment protection.

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No, you can't sue them because you made the choice. If they forced you to do something and you are harmed, you can sue then.

Stating an opinion is free speech, even if the opinion is wrong.

Malpractice is when a doctor messes up. If the person giving you advice is not a doctor, he or she is not licensed to practice and therefore can not commit malpractice since he or she was never authorized to practice.

Here is an overview of what normally constitutes malpractice: https://www.nolo.com/legal-encyclopedia/medical-malpractice-basics-29855.html

A doctor-patient relationship existed. You must show that you had a physician-patient relationship with the doctor you are suing -- this means you hired the doctor and the doctor agreed to be hired.

  • The OP has misidentified the offense; the question does not concern malpractice, but unauthorized practice of medicine. Nothing presented here suggests that the person offering the advice would be unable to be prosecuted for, or sued for civil liability arising from, that. – phoog Apr 11 at 5:40
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    @phoog so you down vote me, but the answer above saying the same thing is fine? Lol – Putvi Apr 11 at 15:49
  • I had intended to raise the same issue in a comment on the other answer, but I must have fallen asleep before doing so. I have now done it, so thank you for reminding me. The main reason for the downvote, however, is that there are limits to free speech, and giving professional advice when not qualified to do so is among them. The other answer qualified the free speech analysis with "via educational and political communication without purporting to provide individualized medical advice." – phoog Apr 11 at 16:24
  • As quoted in my answer, you are not giving professional advice if you are not a doctor or other licensed professional. – Putvi Apr 11 at 16:26
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    Giving advice and practicing without a license are not the same thing. You can tell people they may need a band aid before, that's advice. You can't preform a surgery on people. – Putvi Apr 11 at 16:45

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