Ava Gehringer is a Trial Attorney with Kaveny + Kroll (www.kavenykroll.com). Born, raised and currently an Evanston resident, Ava Gehringer penned the following column on What You Don’t Know…
How much do we have to see to believe? How much of that is dictated by whether it is what we want to see and believe?
Once we see the consequences of things we could have done but didn’t know we should have, would we go back to change those things? Or is the devil you know better than the devil you don’t?
The COVID-19 vaccines have gone through plenty of criticism. Some fear the unknown of them, and the “rushed” safety clearance, but did any of those people know what was in the vaccines they never question because they weren’t created in their lifetime? Is the age of information at our fingertips even helpful if we as laypeople lack the experience to adequately process and act on that information?
These questions are made all the more puzzling by data showing that in facilities where both residents and staff qualify for the first round of vaccinations, the residents are far more likely to agree to be vaccinated than the staff. For example, at one veterans’ home in Illinois, 90% of the residents have reportedly been vaccinated, whereas only 18% of the staff have been. (https://chicago.suntimes.com/politics/2021/1/4/22213911/illinois-states-veterans-homes-staff-covid-19-vaccine-lasalle-manteno-anna-quincy). Thus, it seems, even some nurses and doctors who have seen firsthand the agony the virus causes are hesitant. What are we to take from that? When medical professionals refuse to be inoculated in extremely high numbers, what do we make of Anthony Fauci being vaccinated live on our TV screens?
Though the FDA has of course given clearance to the vaccine makers to begin distribution, they also have warned against possible side effects. As of now, the side effects appear to be generally mild, and the risk of adverse reaction to the COVID-19 vaccine is far outweighed by the risk of serious illness or death due to contracting COVID-19. For those who do suffer an adverse reaction, though, is it possible companies who distribute the vaccine could be legally responsible for injury caused?
Though too early to say for sure in the context of COVID-19 specifically, vaccines have been a source of intense debate. While most blindly accept the MMR vaccination regimen (measles, mumps, rubella) required by schools across the nation, some vaccines haven’t reached that level of broad acceptance. And of those, some have become the source of legal battles.
For instance, Gardasil—also known as the HPV vaccine—has been at the center of many controversial debates. Marketed as a safeguard from cervical cancer (as well as certain STIs and other cancers), the three-dose vaccine first became available in 2006. Over time, the vaccine has been encouraged for boys and girls as young as nine and as old as twenty-six.
Since 2006, Gardasil has been at the center of numerous lawsuits. In one case, a family’s 21-year-old daughter died unexpectedly shortly after receiving her third and final Gardasil shot. Two years after her death, her family filed a claim with the National Vaccine Injury Compensation Program (NVICP). Though the Special Master ruled in 2016 that the family had not met their burden of proof (namely, that the administration of the vaccine caused their daughter’s death), the family appealed that decision to the Court of Federal Claims. In 2017, a judge vacated and remanded the decision, and sent it back to the Special Master to reconsider. Some three months later, the Special Master changed course and awarded compensation to the young woman’s family. (Source: https://newyork.legalexaminer.com/health/fda-prescription-drugs/family-found-to-have-met-burden-of-proof-that-gardasil-caused-daughters-death/)
Other families have brought similar cases in states across the country alleging Merck, the company who makes Gardasil, misled the FDA, legislators, doctors and moms about the safety and efficacy of the Gardasil vaccine. In one, a 19-year-old alleged she suffered and continues to suffer from an autoimmune disease after receiving multiple Gardasil injections. (Source: https://www.baumhedlundlaw.com/blog/2020/august/gardasil-lawsuit-claims-hpv-vaccine-caused-teen-/)
Thus, while there is not yet clarity about potential legal exposure for adverse reactions to the various COVID-19 vaccinations distributed by Pfeizer, Moderna, Johnson & Johnson, and the like, there is some precedence for liability as a result of adverse effects allegedly caused by vaccines. For now, however, the FDA and the medical community have determined any risk posed by adverse effects of the vaccine are far outweighed by the risk of serious illness or death caused by COVID-19.
Employers in the age of COVID-19 now have yet another legal hurdle novel to this pandemic. Employers who are desperate to open the doors of their respective businesses are now scrambling to come up with incentives to persuade their employees to get the vaccine. From proof of vaccination earning employees a raffle ticket to win a Google Next entertainment system to bonuses for those who safely return to the office, employers are grappling with the possible legal consequences if their incentive programs begin to cross the line into HIPAA violations.
The EEOC issued guidance last month that suggests employers can legally require most workers to be vaccinated, barring people with sincerely held religious beliefs or health worries such as allergies. Nonetheless, employers are still nervous, as these are questions we have never had to consider in modern legal history.
For those completely fed up with the restrictions COVID-19 have placed on day-to-day life, the “unknown” of the vaccine seems not to bother them. The devil they don’t know cannot be as bad as the devil they’ve come to know in the last 10 months. For others, especially those who have not had much of their lives interrupted by the pandemic—essential workers or those who are able to largely ignore the strict guidelines of the nation’s largest cities—the risk of the unknown seems to weigh far heavier on their minds.