By Marshall L. Wilde, J.D., LL.M. candidate
The U.S. military’s recent decision to inoculate troops against smallpox exposes a number of people who come into contact with military members to the possibility of infection and complications of infection without providing a remedy at law. The problem lies both in the unique nature of the smallpox vaccine and the application of the Feres bar in preventing recovery for third parties injured by military decisions. Feres v. United States, 340 US 135 (1950). The vaccination carries a substantial risk of cross-vaccination – transmission to a person not intended to be vaccinated. Despite the risk of complications of cross-vaccination, people who are infected with the smallpox vaccine virus are barred from recovering for their injuries because of the immunity of the U.S. for military decisions under the Feres bar.
Simply stated, the smallpox vaccine is not smallpox at all, but rather a similar largely harmless live virus, vaccinia. Smallpox and vaccinia are closely enough related that, once the body fights off vaccinia, it is 95% protected from smallpox. However, while a person is recovering from the vaccinia infection/vaccination, a period of about three weeks, they are contagious and must take careful measures to avoid transmission of vaccinia. Vaccinia does not pose a threat to most healthy people, but can give immunosuppressed patients or the very old or young problems.
The smallpox vaccine carries substantial risks. As many as one third of the vaccinees will suffer flu-like symptoms and may miss work. A small but substantial number will develop more serious problems. At the very least, a successful smallpox vaccination leaves a scar. The old, young and infirm bear a particular risk of cross-vaccination and complications. Adding to the risk, the number of immunosuppressed people in the U.S. has increased substantially since the last administration of the smallpox vaccine. This increase is due both to the increase in people infected with immunosuppressant diseases, such as AIDS, and improvements in medicine that allow people to live longer in an immunosuppressed state.
Inoculating members of the
Reserves presents special problems. While a military member working
in a military medical treatment facility may simply be reassigned to other
duties for the duration of the inoculation, members of the Reserves do
not have such protection from their civilian employers. They may
be required not to work, but remain healthy enough not to qualify for military
incapacitation pay, as traditionally is given to Reservists who suffer
an injury in the military workplace that prevents them from engaging in
their civilian employment. Also, a large number of medical personnel
in the Reserves work in civilian medical facilities, raising the specter
of cross-vaccination complications for a large number of patients with
no military affiliation.
The issue balances on interpreting the Feres bar. The Feres bar usually prohibits military members and their families from suing the U.S. for injuries sustained through the actions of the United States that are related to military service. In several cases, the Feres bar has been extended to injuries to third parties based on the injury to the military member. For instance, children born with birth defects because of their parents’ exposure to radiation while in military service have no cause of action against the U.S. Cases arising from the Gulf War have extended that immunity to children suffering from illnesses contracted because their fathers were required to take certain immunizations while in the service. The reasoning of these cases probably extends to infecting children in being under the Feres rationale.
Feres was decided
on three issues – 1) the uniquely federal relationship of the military
to its servicemembers; 2) the presence of alternative “no fault” compensation
schemes, primarily through the VA; and 3) the desire to avoid interference
in military decision making. All these factors are relevant in the
decision to inoculate military members from anthrax. Logically, third
parties would also be barred from cross-vaccination complications, as the
decision to vaccinate is based on military need.
The recently passed Homeland Security Act presents some issues, however. In 1976, during fears of a swine flu epidemic, Congress passed legislation immunizing flu vaccine manufacturers by substituting the U.S. as the defendant in all vaccine cases. The program was largely a failure. One unintended side effect was a ruling by the 9th Circuit that the United States was liable for injuries to servicemembers (and their families) from the vaccine’s administration to the servicemembers because the Swine Flu Act essentially gave them an end run around the Feres bar. Brown v. United States, 715 F.2d 463 (9th Cir. 1983). The new bill appears to avoid that complication by including language limiting the liability of the United States to those immunizations administered under a declaration of emergency by the Secretary of Homeland Security, but time will tell. In short, it is probable that the U.S. will have no liability for contamination to third parties, but not totally certain.
At the time of writing, the military is considering whether to offer compensation to family members who suffer cross-vaccination complications. Further, several local commanders have made it a policy to activate Reserve troops whose civilian employment precludes them from working with a communicable disease. However, the U.S. has yet to enact any comprehensive plan for compensation for victims of cross-vaccination complications.