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The Hall Center for Law & Health Virtual Grand Rounds Summer Series

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The Hall Center for Law & Health Virtual Grand Rounds Summer Series Welcome to the Hall Center for Law & Health Virtual Grand Rounds Summer Series June 25, 2020 Professor Nicolas P. Terry, LL.M. Director Hall Center for Law & Health Brittany Kelly, J.D., M.S.W., L.S.W. Associate Director Follow us on Instagram and Twitter @iuhealthlaw Hall Center for Law & Health In order to get CLE credit, we must be able to monitor your participation throughout the duration of today’s lecture. A recording of today’s lecture as well as presentation slides will be posted on the Hall Center Website. • No Call-Ins • Please make sure you are NOT joining us over the phone by calling in. Please tune in via computer or the Zoom App on your phone. • Three Polls • To monitor engagement, there will be three polls administered. Our speaker will alert you when it is time for a poll. The poll will pop up on your screen. You are not being graded on your answer, but rather whether or not you respond. Each poll will stay up for 2 minutes, so please do not miss your chance to answer. • Q&A for Speaker Questions • On the bottom of your screens, you should see the Q&A feature. You can use that to pose questions to our speaker. If you see that someone has asked a question that you are interested in, signify that to us by using the “upvote” feature. At the end of the lecture, our speaker will reserve 10 minutes to answer questions posted there. Please do not use the chat room to post questions for the speaker. • Chat Room for Tech Issues • If you are having technical difficulties, you can place those concerns in the chatroom and we will do our best to assist you. • Full Screen Mode • Our speaker will be sharing her screen so that you can follow along with her power point presentation. I recommend keeping your screen in “full-screen” mode for optimal viewing. Professor Dorit Rubinstein Reiss Dorit Rubinstein Reiss is a Professor of Law at the University of California, Hastings College of the Law. Increasingly, her research and activities are focused on legal issues related to vaccines, including exemption laws and tort liability related to non-vaccination. She has published law review and peer reviewed articles and many blog posts on legal issues related to vaccines. She received an undergraduate degree in Law and Political Science (1999, Magna cum Laude) from the Faculty of Law in the Hebrew University of Jerusalem. She received her Ph.D. from the Jurisprudence and Social Policy program in UC Berkeley. She is a member of the Parents Advisory Board of Voices for Vaccines, and active in vaccine advocacy in other ways. UNIVERSITY OF CALIFORNIA HASTINGS SCHOOL OF LAW Misinformation that causes Disease Outbreak: What Can We Do? Dorit R. Reiss . Conflict of Interest Statement: •The family owns stock (regular) in GSK. Example: 6 o An anti-vaccine organization shares misinformation. o People are harmed: o An unvaccinated child gets sick and suffers, or an unvaccinated child infects others. o An outbreak imposes costs and harms on the community. o What are the legal options? MMR Rates in Somali Community 7 Outbreaks: 8 • 2011: – 30 months old unvaccinated child, Kenya travel. – 21 cases. 7 too young to vaccinate, 7 unvaccinated by choice. – 14 children hospitalized, 65%, one in ER. • 2017: – 25 months old unvaccinated child, – 75 cases, 95% unvaccinated. – 65 young Somali children, 21 hospitalized. – Median age 21 months. MMR and Autism - 9 Madsen et al, Honda et al, Denmark, 2002, Jain et al, United Japan, 2005, 537,303 children States, 2016, over 300,000 95,727 children children Hviid et al, 2019, Denmark Fombonee et al, 657,461 Smeeth et al, U.K., Canada, 2006, children 2004, 5,763 27.749 children children Mäkelä et al, Finland, 2002, 535,544 children What can we do? 10 Just 11 because you can doesn’t mean you should. Elements of intentional misrepresentation: 12 (1)Material misrepresentation; (2) Knowledge the statement is false/reckless disregard as to its truth or falsity; (3) Intent to induce reliance by the victim; (4)Justifiable reliance by the victim. (5)Pecuniary damages to the victim. Poll 1: 13 • What kind of damages is traditional intentional misrepresentation focused on? (1)Physical. (2)Emotional. (3)Financial. Misrepresentation that risks physical harm: 14 Restatement (Second) of Torts § 310: An actor who makes a misrepresentation is subject to liability to another for physical harm which results from an act done by the other or a third person in reliance upon the truth of the representation, if the actor • (a) intends his statement to induce or should realize that it is likely to induce action by the other, or a third person, which involves an unreasonable risk of physical harm to the other, and (b) knows • (i) that the statement is false, or (ii) that he has not the knowledge which he professes. Public Nuisance 15 • …unreasonable interference with a right common to the general public. • May include the following: – whether the conduct involves a significant interference with the public health, the public safety, the public peace, the public comfort or the public convenience, or – … – whether the conduct is of a continuing nature or has produced a permanent or long lasting effect, and, as the actor knows or has reason to know, has a significant effect upon the public right. Poll 2: 16 • True or false: States have used nuisance suits in public health contexts in the past. 1. True. 2. False. Restatement (Second) s. 311 17 Negligent Misrepresentation Involving Risk Of Physical Harm Or is it? Elements of s. 311: 18 (1)Negligent misrepresentation; (2)Reasonable reliance on the information; (3)[Resulting] Physical harm And: (4) Duty (5) First Amendment limits Issues: 19 Relationship Continuum: 20 Why? Why not? • Expectation of • Reward mass reliance. deceivers. • Scope of liability. • Not directly related to • Fits duty principles. most tort elements. Consider also 21 Typology: Type of speech 22 No fault: Tax or Fee, Ex Ante options 23 • Fee for non-vaccinating, special fund. • Tax for non-vaccinating – Or: tax breaks for vaccinating. • Insurance premiums: increasing for non- vaccinating. – Or: insurance discount for vaccinating. Poll 3: 24 Why is increasing insurance premiums for non-vaccinating challenging in the United States? A. It’s politically unattractive. B. It requires amending the ACA, which is unlikely. C. It requires government nationalization of health insurance. D. It’s not. No fault: Billing or fining, Ex Post options 25 Billing: • Allow Health Agencies to bill Fining Bill COVID-19 Misinformation: 26 COVID-19 Misinformation 27 28 Thank you! Questions? Comments? [email protected] 415-5654844 29.
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