CT Court Rules that State Cannot Vaccinate Children in its Temporary Care Without Parental Consent

By Elisabeth Ryan

The Supreme Court of Connecticut has, for the second time in three months, ruled that the state Department of Children and Families cannot vaccinate children in its custody without explicit parental consent.  News outlets have proclaimed in alarmist headlines that “State Can’t Vaccinate Kids in Temporary Custody,” but that’s untrue – Connecticut can continue to vaccinate children in its temporary custody, as long as the parents agree.  The state is not actually prohibited from vaccinating any and all children in its custody, but the decision is still concerning from a public health perspective.

In April of 2016, the Connecticut Department of Children and Families took temporary custody of two young children - ages one and two years - after their parents were arrested.  After a judicial finding of neglect, the trial court authorized an agreement between DCF and the parents that would keep the children in state custody temporarily, with an ultimate goal of reunification with the parents.  But the parties differed on one issue: whether DCF could vaccinate the young children according to its usual practice.  The parents objected to vaccinations, citing unspecified religious beliefs.  After an evidentiary hearing, the trial court ruled that DCF could vaccinate the children and that the state’s statutory vaccination requirement exemption for religious beliefs did not apply while the children were in the state's custody.

On appeal, the parents argued that DCF only has statutory authority to provide "medical treatment" to children in its custody and that vaccinations are not "medical treatment" because they are preventive, not curative.  The Supreme Court of Connecticut agreed, holding that the statutory phrase “medical treatment, including surgery, to insure the continued good health or life of the child…” was ambiguous, but that its legislative history referred to emergency medical care, which therefore excluded vaccinations. 

DCF petitioned for the court to re-consider its ruling, which it did.  On re-hearing, DCF argued that the statute it had originally – and apparently mistakenly - relied on (General Statutes § 17a-10 (c)) was not proper because it applied to minors in juvenile detention,  Rather, DCF argued that it should have should have based its case on General Statutes §§ 17a-93 and 17a-98, which “confer broader guardianship authority.”  The court last week quite bluntly rejected this request, calling it “simply…a means for giving the losing party a second chance to try a new argument.”

The concurring opinion – written by the Chief Justice and joined by 4 of her 6 colleagues – went beyond the procedural denial of relief and added that the statutes DCF urged the court to consider would likely be unconstitutional in this context, as DCF’s custody was explicitly temporary and the parents still have the right to make decisions for their children.  Further, by enacting a law allowing a religious exemption to vaccinations, the Connecticut legislature has indicated such a choice is an important public policy interest.

So even though this was a clear case of statutory interpretation, the Supreme Court of Connecticut has indicated that the case to vaccinate the children in temporary state custody would also fail on constitutional grounds, at least based on existing statutes.  The decision as it stands likely does not affect many cases and the legislature is, of course, free to strengthen public health by changing the statutory language.  The court’s indication that such a statute would be unconstitutional is much more concerning and could have larger implications, but it remains an issue that is not yet a reality.

Not Your Grandfather's Preemption: Proposed Federal Preemption of State Medical Malpractice Cases

By Wendy E. Parmet and Elisabeth J. Ryan

During this past spring and summer’s debates over Republican efforts to repeal and replace the Affordable Care Act, GOP leaders insisted that states should be given greater flexibility over health care.  Their support for states’ rights relating to health care, however, seems to be fickle. In June, the same House of Representatives that supported the American Health Care Act, which would have allowed states to get rid of essential benefits, passed on a close vote of 218-210 H.R. 1215, “Protecting Access to Care Act of 2017.” This bill would preempt numerous aspects of state substantive, procedural, and evidentiary law in any “health care lawsuit…for which coverage was provided in whole or in part via a Federal program, subsidy, or tax benefit.”  In other words, the bill would apply to any lawsuit relating to healthcare that was paid for not only by Medicare, Medicaid, or the Veterans Administration, but also by any insurance plan purchased on an Affordable Care Act exchange for which the consumer received a tax credit or subsidy.  It may also apply to lawsuits relating to care paid for by any insurance plan – including any employer-sponsored plan – that receives any tax credits from the federal government. However, the full scope of the language is unclear because it was rushed through the House and subject to just one hour of general debate. 

Federal preemption of state health care laws is not new, as anyone who has heard of ERISA knows. Nor is GOP support for so-called malpractice reform. Republicans have long advocated for stringent tort reform bills, touting them as ways to lower health care costs, reduce liability insurance premiums, and discourage “frivolous” lawsuits.  In response, many states have adopted a wide variety of tort reform measures.

What is striking about HR 1215, beyond the inconstant commitment to states’ rights, is that this bill preempts the procedural and evidentiary rules that would apply in state court. In other words, unlike ERISA or parts of the Food, Drug and Cosmetic Act which preempt state causes of action, HR 1215 would leave tort law claims to be adjudicated in state court, according to state substantive law, but subject to federal caps and federal evidentiary and procedural laws. As one of us argued in another context, the constitutionality of this kind of federalization of state court procedures is highly questionable.

Yet, subject to certain limitations, and provisions that would allow states to impose even more stringent restrictions, HR 1215 would preempt or modify a wide range of procedures and evidentiary rules applicable in state court actions. Among other things, it would:

 - Impose a statute of limitations of 1 year from a patient’s discovery (or the time a patient “should have” discovered) of the injury;

 - Limit non-economic damages (including “physical and emotional pain, suffering… [and] disfigurement”) to $250,000 (Research has shown that patient care falls in states with similar caps.);

 - Eliminate joint and several liability, with each defendant only responsible for its own share of damages;

 - Specify the amount that attorneys may collect in contingency fees and allow a judge to restrict that amount even further, regardless of whether the judgement was via verdict, settlement, or any other kind of alternative dispute resolution;

 - Mandate that damages be paid in installments, prohibiting lump sum payments;

 - Forbid experts from testifying to the standard of acceptable practice in a defendant’s specialty and whether that defendant met that standard unless the expert was licensed to practice that specialty in the state at issue in the one year prior to the incident;

 - Make inadmissible any provider’s expressions of “apology…or a general sense of benevolence” to a patient;

 - Require the plaintiff to file a detailed “affidavit of merit” by a health professional, simultaneous with the filing of a complaint;

 - Require a plaintiff to give a potential defendant 90 days written notice before filing a   complaint.

In the past, Republican tort reform efforts died in the Senate due to the filibuster. For the moment, the filibuster remains, so HR 1215’s enactment seems unlikely. However, given the President’s repeated calls for ending the filibuster, and the uncertain fate of health reform, nothing can be taken for granted. For this reason, HR 1215 merits serious review, both for its impact on patient rights and for its proposed federalization of state court procedures.