"Is it against the law for a doctor to refuse
to attend to a baby for well-baby checks because the
parents refused to have the child vaccinated? "
anonymous
Can a doctor refuse to attend to a baby for well-baby
checks because the parents have refused to have the
child vaccinated?
The doctor's duty to attend to a child or any patient
arises out of the establishment of the doctor-patient
relationship. The law of most states treats the doctor-patient
relationship as a consensual one, that is, both parties
knowingly agree to enter into the relationship. Once
the relationship has been established, the patient
may withdraw at any time by dismissing the doctor
or by simply not seeking his or her services again.
However, it is not quite so easy for the doctor to
withdraw if he wants to escape potential liability
for abandonment or negligence should some harm come
to the patient arising out of the withdrawal.
As general rule, the doctor must give clear notice
to the patient that he or she intends to withdraw
from the relationship. Such notice must be in ample
time for the patient to find another health care provider.
In the case of a minor child, such notice must be
given to the parents or legal guardian of the child.
Some states have also held that the doctor who seeks
to withdraw has a duty to help the patient find another
doctor and to attend to the patient until that time,
at least in the case in which the patient needs immediate
attention.
Whether the doctor-patient relationship has been
both established and ended depends on the particular
facts. If for example, the doctor in this case has
treated or attended the baby for well-baby checks
or for illness on occasion prior to the time for vaccinations
or prior to the parents' refusal of vaccinations,
then clearly the doctor-patient relationship has been
established. However, if the first visit was made
at the time for vaccinations, vaccinations were recommended
and the parents refused, and the doctor informed the
parents at that time that he or she would not accept
the child as a patient unless they agreed to vaccinations,
the doctor might have an argument (perhaps weak) that
no doctor-patient relationship was ever established.
Assuming that the doctor-patient relationship was
established, your question suggests that the doctor
has informed the parents that he or she is withdrawing
from the relationship. If this was done several days
or weeks prior to the time for the next routine well-baby
check then this would probably be considered reasonable
time for the parents to find another doctor.
Some states may treat the doctor-patient relationship
as more like a contract, in which case the general
law of contracts of the state might apply to determine
if there was a breach of the contract and/or whether
specific performance of the contract is a possibility.
That means that if a court found that a valid contract
to attend the child exists and all other terms or
conditions of the contract were met, it might order
the doctor to attend the child according to the terms
of the contract. Or there may be particular facts
that would support an argument that the particular
doctor-patient relationship at issue was contractual,
such as if the doctor had entered into some financial
arrangement with employers or a third party to provide
care to a class of patients in which this child was
included. I think this would be a rare case, but if
it is important to the parents that this particular
doctor attend the child, they could explore the possibility
of a breach of contract claim with a licensed attorney
in their state who can determine if there are any
facts to support such a claim and specific performance
under that state's law.
On the facts given, I am not aware of any federal
or state legislation that would require the doctor
to continue seeing the child after giving notice that
he would not see the child again if the parents refuse
vaccinations. Also keep in mind that to bring a successful
abandonment or negligence action against the doctor,
you must be able to show that the doctor failed to
give timely notice of withdrawal and that refusal
to attend the child was the proximate cause of some
harm to the child. If the parents believe they have
such a claim they need to seek the advice of an attorney
in that state.
You do not indicate why the parents refuse to have
the child vaccinated, whether for religious reasons
or because they are afraid of possible side effects
of the vaccine or for some other reason. Most if not
all states now have mandatory vaccination laws that
require all children to be immunized, at least before
they can attend a licensed school or daycare facility.
The Supreme Court has upheld such law in Jacobson
v. Massachusetts, 197 U.S. 11 (1905). More recently,
the Court stated that "[t]he right to practice
religion freely does not include liberty to expose
the community or the child to communicable disease
or the latter to ill health or death." Prince
V. Massachusetts, 321 U.S. 158, 166-67 (1944). Also,
failure to have a child immunized, whether intentional
or not, has been used as evidence to support a charge
of parental neglect but usually along with other evidence
of neglect.
Whatever the reason for refusing vaccinations, to
protect the child the parents need to find a physician
who is willing to attend the child even if the child
is not vaccinated. This may not be easy, as many physicians
may not want to get involved in the care of a child
either for well-child or especially for illness when
such care may lead to possible conflict or even court
battles with parents involving what the physician
may see as his duty to the child who is his patient
or what the physician or the state considers to be
the best interests of the child. To protect themselves,
the parents need, at a minimum, to familiarize themselves
with the law of their state regarding vaccinations.
As legal advice can be expensive, the parents may
be able to seek help from local legal aid services
or other local programs regarding their rights and
responsibilities under the law of their particular
state.
If the parents are refusing vaccinations for the
child because they are afraid of possible side effects,
they should express this fear to the doctor or find
a doctor with whom they feel comfortable expressing
this fear. The doctor may be able to offer information
and support that will help.
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