A Maine family has appealed the dismissal of a lawsuit alleging a clinic set up at a school gave their son a COVID-19 vaccine in November 2021 without the parents’ consent.
J.H., a minor, was given a dose of the Pfizer-BioNTech COVID-19 vaccine on Nov. 12, 2021, at Miller School in Waldoboro, Maine.
The lawsuit — against Lincoln Medical Partners, MaineHealth and Dr. Andrew Russ, a pediatrician — challenges the liability shield given to medical practitioners under the Public Readiness and Emergency Preparedness Act (PREP Act).
J.H.’s parents, Siara Harrington and Jeremiah Hogan, who said they did not consent to their son’s vaccination, sued the defendants in May 2023 in Lincoln County Superior Court.
The defendants filed a motion to dismiss in August 2023, arguing they were immune under the PREP Act. In April, the Maine Superior Court granted the defendants’ motion.
The family appealed the dismissal to the Maine Supreme Judicial Court on Aug. 1, arguing that the PREP Act does not protect medical practitioners from liability in cases involving non-consensual medical interventions and that the PREP Act does not reconcile with laws governing drugs administered under emergency use authorization (EUA).
The appeal references the Project Bioshield Act of 2004, which states that, for products issued under EUA, people must be informed of the “option to accept or refuse administration of the product, of the consequences, if any, of refusing administration of the product, and of the alternatives to the product that are available and of their benefits and risks.”
Yet, under the PREP Act, immunity applies to anyone who has “a casual relationship with the administration … of a covered countermeasure,” including “the design, development, clinical testing or investigation, manufacture, labeling, distribution, formulation, packaging, marketing, promotion, sale, purchase, donation, dispensing, prescribing, administration, licensing, or use of such countermeasure.”
Informed consent ‘fundamental to our liberty’
Ron Jenkins, one of the lawyers representing the family, said the human right to informed consent is at stake in this case. He told The Defender:
“What is at stake here is the legal doctrine, entrenched in our common and constitutional law, and fundamental to our liberty, that human beings must provide informed consent to medical interventions. If Congress had intended to abolish this bedrock legal doctrine in the PREP Act, then surely it would have done so in very clear and precise language.
“Failure to obtain informed consent is not on the list, probably because the legislators responsible for the PREP Act knew that effectively abolishing it by removing meaningful civil remedies in the tort system would not garner support. Average, common sense Americans would never agree to medical interventions effectively forced on them by the State, and would insist on remedies for the wrongdoing, whether or not death or serious physical injury was the result.
“Consent is meaningless, if there is no meaningful recourse for failing to obtain it. The courts are simply wrong to accomplish judicially, what Congress could not legislatively.”
Attorney Ray Flores, senior outside counsel to Children’s Health Defense (CHD), told The Defender the PREP Act has been difficult to challenge.
“The PREP Act preempts State law relating to the administration of a covered countermeasure by a qualified person,” Flores said, noting this creates “an incredible, yet not completely insurmountable obstacle.”
“For the most part, PREP was intended for covered persons to literally get away with murder. The whole point of the PREP Act is to provide blanket immunity,” Flores said.
Boy vaccinated at school despite lack of written or verbal consent
According to the appeal, the defendants “promoted the vaccine clinic through letters and text messages sent to parents” in October 2021. These letters said “COVID-19 vaccination was optional” and included a registration form and a consent form which stated, “most important [sic] this must be signed by a parent.”
The letter and the two accompanying forms were again sent to parents, this time by text message, on Nov. 9, 2021, three days before the school vaccination clinic was scheduled to operate.
The appeal states that J.H.’s parents “made a conscious decision against vaccination, accordingly neither completed, signed or delivered the consent form or registration form, and neither of them ever provided any consent of any kind, verbally or in writing, to J.H.’s participation in the vaccine clinic or to J.H. being injected with any COVID-19 vaccine.”
Yet, Russ, who “had served as J.H.’s pediatrician since birth” according to the appeal, “injected J.H. with a Pfizer COVID-19 vaccine” at the school vaccination clinic on Nov. 12, 2021.
In granting the defendants’ motion for dismissal in April, Judge Daniel I. Billings ruled that Russ, Lincoln Health and MaineHealth, are “covered persons” under the PREP Act, who are “entities authorized to prescribe, administer, or dispense vaccines” and are therefore “immune from liability as to Claimants’ claims for loss.”
“The fact that Claimants allege a failure to obtain consent does not vitiate that immunity. This finding is supported by the plain language of the PREP Act. The Notice of Claim does not allege facts sufficient to find relief under the sole exception to immunity, for death or serious physical injury,” the ruling states.
Maine lawsuit one of several challenging the PREP Act
Flores said this case is one of several that are attempting to challenge the PREP Act’s immunity provisions.
“The Appellants’ brief was filed one day after the Vermont Supreme Court upheld the dismissal of a similar case,” Flores said. “However this case, and particularly the North Carolina Supreme Court case, raise novel issues that could finally put an end to this abrogation of parental rights.”
In the Vermont case, a 6-year-old was mistakenly administered a COVID-19 vaccine after name tags at the child’s school were mixed up. The court, however, ruled that the PREP Act affords blanket legal immunity to the state and school district.
In the North Carolina case, the parents of a 14-year-old boy sued practitioners and their local school district after he was administered a dose of the Pfizer-BioNTech COVID-19 vaccine without his or his parents’ consent.
That lawsuit, filed in August 2022, was dismissed by a North Carolina trial court in February 2023 on the basis of PREP Act immunity. The dismissal was affirmed by the North Carolina Court of Appeals, leading the boy’s family to appeal to the North Carolina Supreme Court. CHD filed an amicus brief in support of the appeal on July 30.
Several other lawsuits challenging the PREP Act are pending. In June, Moms for America and several plaintiffs who were injured by a COVID-19 vaccine, or whose loved ones were injured by or died following a COVID-19 vaccine, sued the federal government, alleging the PREP Act’s immunity provisions are unconstitutional.
In October 2023, React19, an organization advocating on behalf of vaccine-injured individuals and their families, and several individual plaintiffs, sued the federal government, alleging the PREP Act’s immunity provisions and the requirements of the Countermeasures Injury Compensation Program are unconstitutional.
And in May 2023, the family of a 24-year-old man who died of COVID-19 vaccine-induced myocarditis sued the U.S. Department of Defense and Defense Secretary Lloyd Austin III citing “willful misconduct” under the PREP Act, alleging the military continued to administer EUA versions of the Pfizer-BioNTech COVID-19 vaccine even after a different vaccine, Comirnaty, received full approval.
Flores said these cases “clearly spell out in great detail the unconstitutionality of the PREP Act,” but “are not without significant hurdles as well.” He said the May 2023 lawsuit is the first-ever case challenging the PREP Act on the basis of willful misconduct.
Referring to the Maine lawsuit, Flores said, “No court, through appeal, has ever found a vaccinator of a minor liable in a case such as this. On the other hand, if people see blatant false advertising, contractual fraud and battery of a minor being protected by the PREP Act, hopefully the people will have had enough and things could begin to change.”
“A victory would narrowly nibble away” the PREP Act’s immunity provisions “by declaring battery of a minor unlawful,” Flores said.