Pox Americana? Vaccinating More Emergency Doctors for Smallpox - A Law and Economics Approach to Work Conditions

52 Pages Posted: 5 Aug 2007

See all articles by Michael H. LeRoy

Michael H. LeRoy

University of Illinois College of Law


Experts and government agencies believe that a smallpox attack against the U.S. is possible. Dark Winter - a simulation run in June 2001 by national security groups - concluded that a single smallpox attack would result in a viral holocaust. This is because Americans have no immunity to this disease. Smallpox has no cure and a 30% mortality rate.

Federal policy fails to prepare the nation for this possibility. It identifies 500,000 workers, including emergency doctors, as bio-terror responders but only encourages vaccination. The Smallpox Emergency Personnel Protection Act tried to persuade them to be vaccinated. This disability law pays up to $262,000 for side effects, but only 39,554 workers have had the shot.

An ineffective vaccination policy for emergency doctors is the greatest hole in the nation's security from this bioterror threat. They must play a critical role in identifying and isolating the disease. Yet, to avoid this infection, many unvaccinated emergency room workers in Dark Winter failed to show up for work after the attack was announced.

I propose a law and economics approach to improve this aspect of national preparedness. My idea is derived from the nation's early history in hiring doctors to fight smallpox. In the 1800s, towns paid high incentives to persuade doctors to administer risky vaccinations and quarantines.

Lessons are also taken from the Swine Flu vaccine program. Congress believed that nationwide inoculation was needed in 1976 to prevent great loss of life, but vaccine makers balked because of tort liability. Congress fixed this problem by substituting the U.S. for a company or doctor who provided vaccinations. This shows that a federal cap on tort liability greatly improves participation by health care providers in an emergency vaccination program.

This experience provides an analogy to address the current failure to motivate bio-terror responders. Emergency doctors are burdened by soaring malpractice insurance costs. But costly insurance is causing many to retire or curtail their practice. This is depleting the supply of doctors to diagnose and isolate smallpox.

In sum, experience from the 1800s shows that special incentives are needed to persuade doctors to deal with smallpox. More recent experience shows that doctors participate in risky vaccination programs when they are shielded from tort liability. Congress should therefore cap tort damages for emergency doctors who are vaccinated for smallpox.

Keywords: bio-terror, national emergency, first responder, malpractice reform, smallpox, vaccination

JEL Classification: I18, J28, J44, J58, K31, K32

Suggested Citation

LeRoy, Michael H., Pox Americana? Vaccinating More Emergency Doctors for Smallpox - A Law and Economics Approach to Work Conditions. Emory Law Journal, Vol. 54, No. 1, 2005, Available at SSRN: https://ssrn.com/abstract=1004614

Michael H. LeRoy (Contact Author)

University of Illinois College of Law ( email )

504 E. Pennsylvania Avenue
Champaign, IL 61820
United States

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