Tuesday, July 18, 2017

Vaccination, Health Care Workers & The Law

Public domain from Wikimedia Commons
I just read an interesting article from one of my regular web news services, this one from The Clinical Advisor. Their regular feature Legal Adviser (July 13, 2017) shares a case of a nurse who was fired for refusing an employer-mandated Tdap (tetanus, diptheria, pertussis) booster vaccine for all employees at the hospital. Part of the driver for this was known occurrences of outbreaks of pertussis--whooping cough--which still occur despite the fact that most children are routinely immunized against whooping cough. In fact I still see some patients and families with this condition, which is uncomfortable, but usually self-limiting and non-fatal. (Even though this shouldn't happen, it does. So much for the power of vaccination.)

In vulnerable people, like infants and children, older adults, or people who are sick or have faulty immune systems, it can be very serious or fatal. So it's easy to understand why hospitals want their employees to be immune to it. If one would come down with it, they could certainly infect such vulnerable individuals.

The summary of the case is that a nurse didn't want to get the booster. The hospital wanted a note from her doctor as to why she shouldn't receive the vaccine. The nurse suffered from various allergies and a condition called eosinophilic esophagitis (basically a kind of autoimmune heartburn) and was anxious the vaccine would cause problems related to these conditions. The doctor issued a letter stating the nurse was "medically exempt."

The hospital said this was not enough. They listed the 9 conditions officially listed as reasons to not get the vaccine. They wanted the physician to be more specific. He wrote back to the hospital about the patient's history of "various allergies" and how she was "terrified" of getting the vaccine.

The hospital's employee health services coordinator told the nurse that the doctor's note did not meet the definition of medical contra-indication detailed in the product's official literature and told her to get the vaccine or get fired.

The nurse declined to comply and was fired.

She sued under the Americans with Disabilities Act, but the suit was dismissed in Federal Court, because the employer did try to accommodate the employee: Her provider was to state which specific condition, of the 9 listed, the nurse had in order to exempt her from getting the booster shot.

The Legal Power of Words...

I spared you the technical details of the conditions because they weren't anything this plaintiff had, and are mostly pretty uncommon, so most people don't have them either. Game over? Not quite.

The hospital wanted one of those words. The physician's second letter emphasized the nurse's "anxiety" about the vaccine. That wasn't going to satisfy them. So what could the physician have done differently?

The last condition on the list was "altered immune competence." The plaintiff had this, that is if one considered "competence" to be a system that functions as it should. Typically, regular health care professionals--doctors, nurses, etc.--would consider "competence" to be like "strong enough" and would perhaps interpret "altered immune competence" to mean "lowered immunity." However "altered" means just that--not the regular way it works. The nurse's immune system certainly wasn't working as it should, she had allergies, environmental sensitivities, and an autoimmune condition!

I read this article and decided that I would have responded to the hospital's second request for detailed information by stating that the patient has "altered immune competence"--which is technically accurate from this professional's point of view. Using that logic I could build my case: The patient's condition of "altered immune competence" makes it likely that a revaccination may lead to untoward or catastrophic medical consequences, based on the manufacturer's own data. Further I would have suggested appropriate accommodation (such as reassigning the nurse or asking her to wear a mask during disease outbreaks publicized in the public health notices of her locality).

Fact is, I probably would have done this at the outset, which would have nixed the back and forth communication between my office and the employer. I can't promise this would work, but I think it has a better chance of succeeding, because employers--especially hospitals--are exceedingly legalistic. They also don't like to lose. They want people to comply (sounds like a topic for another blog post!).

This case fell apart because the court found that the ADA doesn't require accommodation for "purely personal reasons" (the nurse didn't want the vaccine and was anxious about it). The court further ruled that "Whether or not the hospital should 'require employees to obtain the vaccine is not a question for the Court to determine.'" Which makes sense. They are judges, not doctors.

Take Home Messages
First, if you have a problem with an employer-required health act, like a vaccination, ask yourself why. If it's personal preference, don't lead with that. It's a loser.

Second, even though there are usually specific reasons listed in the "official" literature for not receiving such interventions, like a given vaccine, there's usually some wiggle room, because many "specific" reasons aren't as specific as they sound. People need to discuss these in a more effective way. For example, the nurse could have asked her physician which of the 9 conditions he or she was concerned about, or potentially could be applicable.

Third, realize that employers have concerns too. They don't want to intrude on the particular medical relationship of individual employees, each of whom is unique. And they want to be covered legally. The reason for refusal needs to be, and appear in print, legitimate.

Occasionally I am asked to issue a letter of medial exemption for patients, usually kids, to avoid certain vaccines. I never issue such letters unless there is a legitimate reason to do so. However, as my first duty is to the patient, I must weigh each request in the context of the total medical picture. Many of my patients have some alteration of immunity. Some such "alterations" may be easily recognized--such as immune depression due to chemotherapy. Others are more nuanced, such as cases of multiple allergies and sensitivities, or ongoing treatment for a condition related to immune competence. This could include a host of things such as asthma, repeated infections, and other immune-related issues.

Thus, I advise parents/patients that not getting a vaccine comes with certain risks. I state this in my letter and in my chart notes. I also use clear, definitive language that helps the school nurse or the employer to understand how the medical condition of the person is related to the vaccine and its risks. I often advise delay rather than a permanent exemption. After all, I don't know how long it will take to treat someone. Let's wait until things stabilize and re-evaluate.

So I'll go back to my first take-home message to come to my last: If no real contra-indication for something like a vaccine or other employer safety measure exists, then patients need to be prepared for what happened to the nurse in this story. We can believe anything we wish, but others are not required to believe it too. If one chooses to live a certain way, one must sometimes accept that consequences attach to that choice. Fortunately, there are enough folks out there like myself who can accept the people whose choices stand apart from the crowd.

Here's wishing you lots of good health...and few "employer mandates"!

No comments:

Post a Comment