H1N1 Vaccination and Assault and Battery
November 23rd, 2009. By LucyC
When you think of the H1N1 vaccine—do the terms assault and battery also come to mind? Likely not. Well, apparently there are some instances where parents who decided their children should not receive the swine flu vaccine found that their kids had been inoculated by accident. And that constitutes battery, at least according to a New York medical malpractice lawyer. He has issued a press release on the subject, so I would assume this is not an u
ncommon problem.
The incident of a Brooklyn school girl is cited in the press release. Apparently, her parents didn’t sign her up for the vaccine, but she wound getting it anyways and ended up in a hospital. She has epilepsy and one assumes the vaccine somehow caused a serious adverse reaction.
“Any unlawful touching or unauthorized administration of medical care not in an emergency situation is a battery, a legal term for an assault. A school district cannot unilaterally administer vaccinations without parental consent, in writing,” the lawyer explained. “If there is a battery,†he is quoted as saying, (medicine given to a child without an emergency situation, or parental consent), “by law the child is entitled to compensatory damages.”
Now I would emphasize that the lawyer is only commenting on situations in New York City elementary schools, to the best of my knowledge. And, as always, there are exceptions to the rules, in that in the event of an emergency—schools would be able to provide medical care to the student since they are acting “in loco parentis”—which means instead of the parent—while a child is in their care.
The lawyer also warns that school districts and their municipalities are heavily protected against lawsuits…no surprise there…so filing a lawsuit should be a carefully considered decision, as it should be in any event.
And, there is a statute of limitations for filing a lawsuit:
“Vaccinating a child without parental consent is a tort that has a one-year statute of limitations. But because the school is part of the City, a parent only has 90 days from the time of the battery to file a Notice of Claim.” And, 90 days means 90 days, not three months.
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