On Tuesday, November 24, I took my two children (Sebastian, 12 and Nico, 10) to get their H1NI flu vaccination at the Bristol Field House at Hobart William Smith College in Geneva, Ontario County, New York, where we live. Although I firmly believe this was the right decision, I can never just “relax” when my kids are getting medical treatment, especially a new and relatively untested treatment such as this vaccine. A nagging voice in my brain always asks, “what if the authorities make a mistake, for example, give them the wrong doses?” This “what if” thinking haunts me more than most parents because of what I do all day long; I review and handle, among other types of personal injury cases, medical malpractice cases, in Geneva, Phelps, Penn Yan, Seneca Falls, Waterloo, Auburn, Weedsport and Syracuse, New York, and in a lot of other places in New York State as well. I see a lot of medical mistakes. I am therefore perhaps overly wary of them.
Maybe that little voice in my head wasn’t so off base. I just read today that the Center for Disease Control and Prevention alerted residents of Needham, Massachusetts that a vaccine wrongly labeled H1N1 was administered to 47 residents. The residents were instead vaccinated against another strand of the flu. This happened on November 24, the same day my kids were getting vaccinated! The Massachusetts Health Department contacted all 47 recipients to inform them that they had gotten the wrong flu shot. Fortunately, no one got sick. The recipients are simply immunized against a more common seasonal flu and not immunized against the swine flu.
What if one of them contracts the swine flu and dies before he has the opportunity to get the REAL swine flu vaccine? In my opinion, the estate of that person would have a slam dunk lawsuit against who ever made the error. If it was a doctor or hospital, the case would be framed as a medical malpractice case. If it was a pharmaceutical company, the suit would be brought as a products liability case. Either way, I cannot think of a single defense that would defeat such a claim.
On the other hand, if the recipients of the wrong flu vaccine do not now diligently seek out the “real McCoy” swine flu vaccine, and then contract the swine flu and die, the defense could argue both that the deceased “failed to mitigate her damages” (legalize for “you could have prevented or minimized the harm to you but chose not to”) and that the deceased”s own decision to not pursue the available swine flu vaccine caused her death rather than the pharmaceutical or medical error that occurred earlier.
My advice to those 47 Massachusetts residents: Go get that HINI flu shot as soon as you can.