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In 1998, a British medical researcher and former surgeon published a research paper. In it, Andrew Wakefield made a claim that linked the measles, mumps and rubella (MMR) vaccine to the onset of autism.

The result: instant fame for Wakefield, who went on to author a book that included a foreword by actress Jenny McCarthy on the autism link, and, in 2011, a retraction of all the research and findings.

The British medical journal BMJ concluded that Wakefield’s study was based on fraudulent data. Wakefield, they said, had altered or misrepresented medical histories of all patients whose cases were the foundation of his study. However, Wakefield claims no fraud occurred, and that his research clearly shows a link between autism and vaccination.

Now living in the United States, Wakefield has garnered enough attention on his research to have sparked a movement. Parents, accepting the notion of a link between immunizations and autism, are choosing not to vaccinate their children. Celebrities have joined parents in speaking out against what they feel is a requirement that is putting their children in harm’s way: mandatory vaccination.

Anti-vaccination stances have long been part of the culture in the U.S. The Amish community has not accepted vaccinations for safety and religious reasons. As a result, parents and anti-vaccine supporters point to the community’s seemingly nonexistent numbers of autism sufferers as proof that vaccines are doing harm.

However, the link hasn’t been proven. In 2013, The Journal of Pediatrics released the first-ever study of the CDC-recommended childhood immunization schedule and autism spectrum disorder (ASD). The results show that “the amount of antigens from vaccines received on one day of vaccination or in total during the first two years of life is not related to the development of ASD.”

That data supports findings from a 2004 Institute of Medicine report that found no “causal relationship between certain vaccine type and autism.” While autism is on the rise, the medical research community has yet to find any tangible link between vaccination and the disease.

Ironically, as laws are relaxed on vaccination requirements, the incidence of autism is on the rise: from 1 in 88 cases two years ago to 1 in 68 cases this year, says the CDC.

However, current statistics on autism cases by state suggest there is little correlation between autism and vaccinations – autism rates in Alabama, where less than 1 percent of the population has non-medical exemption, are the lowest in the country at 1 in 175 children. In New Jersey, where between 1.1 and 2 percent of the population receives non-medical exemption, the rates of autism are worst – 1 in 45 children are diagnosed, according to the CDC.

Moreover, the occurrence of other disease – pertussis, measles, mumps and chicken pox – are on the increase. Between 2009 and 2010, there were 3,502 cases of mumps among New York City’s Jewish community. Pertussis cases tripled in New York to 1,288 in 2012. In Oregon, the state with the highest percentage of vaccination exemptions in the country, autism has risen to 8,694 children in 2011-2012, up from 7,579 children in 2008-2009, according to the Oregon Department of Education. And in Arizona, where all one needs is a parent’s signature to be exempt from vaccination, there were 12,000 reported cases of pertussis in 2013, a disease that can be fatal in small children.

Claims and legalities

To date, there has been no legal action taken against parents whose children aren’t immunized for non-medical reasons. However, those days could be short-lived as preventable diseases begin to reappear among the populace. For example, in 2010, 9,210 children in California contracted whooping cough, the state’s worst episode of the disease. The journal Pediatrics pointed to the high number of unvaccinated children as the distributors of the disease. Those same researchers noted that outbreaks of whooping cough coincided with unvaccinated children entering kindergarten between 2005 and 2010.

To date, Huhnsik Chung, insurance partner at Edwards Wildman Palmer in New York, has seen no litigation derived from unvaccinated people and disease outbreak. But he thinks it’s just a matter of time before insurers seek subrogation for claims stemming from outbreaks directly tied to an unvaccinated person. Medical costs rise, he says, in the wake of diseases that are caught and then spread by unvaccinated people. “It’s a situation where it would have been an otherwise preventable loss,” Chung says. “When an individual knowingly brings back mumps or other illness negligently – I think it’s gross negligence at this point – exposes him or herself to others causing injury, is that a viable cause of action? I don’t think it would get tossed out (of court).”

Conversely, nor have suits filed by families claiming that forced participation in vaccination programs have caused harm to their children. In 1986, the U.S. government passed the National Childhood Vaccine Injury Act (NCVIA). That established the Vaccine Injury Compensation Program (VICP), a trust fund set up in an attempt to staunch the multi-million-dollar verdicts waged against vaccine manufacturers and provide a compensation system for those whose children were found to have suffered injuries due to vaccinations. Claimants must show that a covered condition, as outlined by the Health Resources and Services Administration (HRSA), occurred within the stated time period considered by HRSA to indicate a correlation with vaccination. Claimants meeting the criteria are deemed eligible for federal compensation.

While that’s helped to some degree, thimerosal, a preservative used in many vaccines, has now entered the legal landscape as a potential link to autism. Since 2001, there have been 5,000 thimerosal-related claims filed against VICP and attempting to link thimerosal with autism. These cases have not been successful to date, and Jason McDonald, spokesperson for the Centers for Disease Control in Atlanta, believes it’s because autism claims rest on a shaky foundation: the now-retracted Wakefield report linking autism to vaccinations.

McDonald says despite the reluctance of a growing number of parents to immunize their children, there’s been little statistical change in the number of children being immunized. “We have had over 90 percent vaccination rates in the United States since the mid-90s,” says McDonald. “Looking at the national picture alone, it would appear the movement has not worked.”

McDonald cautions, however, that the impact of anti-immunization pushes may be hard-felt at the community level. “If enough children do not get immunized, it can break down community immunity and pose a danger to kids who are either too young to get vaccinated or unable to get vaccinated against the diseases – children being treated for cancer, for example – as well as those children for whom the vaccine did not provide immunity,” McDonald says.

For Anne Myers, the issue is both a professional and personal dilemma. Myers, partner with Kaufman Dolowich & Voluck, Blue Bell, PA, concentrates her practice on insurance coverage. However, she sees all too well the human side to the anti-immunization movement. Myers says five children in her family have autism. “This is something my family thinks about a great deal.”

Still, despite one family member spending $15,000 annually to provide treatment for an autistic child, Myers isn’t ready to say definitively that vaccinations are the culprit. “No one is willing to say vaccines cause autism, but something is going on,” she says. “Children have to be treated for illness.”

What insurers need to know

Insurers are notably silent on the subject. Calls to several carriers netted no response. Chung says that’s not surprising. Chung, who handles Edwards Wildman Palmer’s insurance and reinsurance business, believes insurers are not yet willing to subrogate costs associated with these diseases, but insurers are concerned about customers becoming ill due to non-vaccinated people. “It’s going to be hard to imagine a situation where these issues are elevated to lawsuits,” he says. What’s really required is a scientifically reliable causal relationship” which he says is currently difficult to prove.

However, Chung thinks legal action could hit the radar of insurers if more children go without immunization. He believes any future litigation will boil down to the preventable aspect and the seriousness of the illness or injury. Because policies are written on a group basis, Chung says the impact to insurers may not be felt any time soon by the few who aren’t vaccinating their children. Could insurers charge higher rates to people who refuse to immunize? “Yes,” Chung says. “But practically, it could be difficult to enforce.”

Instead, insurers should be educating the public, he suggests. “They’ll need to push back against any movement, the anti-vaccine movement, to use the scientific evidence available to date to counter-balance whatever the movement is doing to affect the decision to vaccinate or not vaccinate,” Chung says.

As far as vaccine safety goes, Myers says insurance companies are absolutely golden because of VICP. That cuts them out of the loop from a liability standpoint, she adds. They’re not entirely out of the woods when it comes to costs, though. “They will experience increased costs in health care because of the children that do cause a mini epidemic,” Myers says.

What is clear, says Myers, is that people on either side of the issue are passionate in their beliefs. That in itself could be why insurers are avoiding commentary. “It’s a hotly debated issue. There are people who say if you’re not vaccinating your child exactly on the schedule that the AMA recommends, then you are a bad citizen and a goddamn fool. Then there are others who say if you’re buying in to what the AMA is saying, you are a goddamn fool,” says Myers. “The lines are drawn.”

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