Judge Halts Mandatory NYS Vaccinations

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October 16, 2009 , 12:58 pm

Judge Halts Mandatory Flu Vaccines for Health Care Workers

_http://cityroom.blogs.nytimes.com/2009/10/16/judge-halts-mandatory-flu-vacc

ines-for-health-care-workers/_

(http://cityroom.blogs.nytimes.com/2009/10/16/judge-halts-mandatory-flu-vaccines\

-for-health-care-workers/)

By _Sewell Chan_ (http://cityroom.blogs.nytimes.com/author/sewell-chan/)

AND _Anemona Hartocollis_

(http://cityroom.blogs.nytimes.com/author/anemona-hartocollis/)

 

Daniel Barry for The New York Times Dr. Richard F. Daines, the state

health commissioner, issued the vaccination requirement in August.

Updated, 1:27 p.m. | A judge on Friday morning halted enforcement of a New

York State _directive_

(http://www.health.state.ny.us/press/releases/2009/2009-09-24_health_care_worker\

_vaccine_daines_oped.htm) _requiring_

(http://www.nytimes.com/2009/09/21/nyregion/21vaccine.html) that all health

care

workers be vaccinated for the seasonal flu and _swine flu_

(http://www.nytimes.com/info/swine-flu-h1n1-vaccine/) .

The temporary restraining order by the judge, Thomas J. McNamara, an

acting justice of the State Supreme Court in Albany, is likely to add to the

_growing debate_ (http://www.nytimes.com/2009/10/16/health/16vaccine.html)

about the flu vaccine.

Justice McNamara scheduled a hearing on the case for Oct. 30.

On Aug. 13, the state health commissioner, _Dr. Richard F. Daines_

(http://www.nytimes.com/2007/02/02/nyregion/02lives.html) , through the State

Hospital Review and Planning Council, issued a regulation ordering health care

workers to be vaccinated by Nov. 30 or face fines.

Dr. Daines _said_

(http://www.health.state.ny.us/press/releases/2009/2009-09-24_health_care_worker\

_vaccine_daines_oped.htm) at the time:

 

Questions about safety and claims of personal preference are

understandable. Given the outstanding efficacy and safety record of approved

influenza

vaccines, our overriding concern then, as health care workers, should be the

interests of our patients, not our own sensibilities about mandates. On

this, the facts are very clear: the welfare of patients is, without any

doubt, best served by the very high rates of staff immunity that can only be

achieved with mandatory influenza vaccination – not the 40-50 percent rates

of

staff immunization historically achieved with even the most vigorous of

voluntary programs. Under voluntary standards, institutional outbreaks occur

every flu season. Medical literature convincingly demonstrates that high

levels of staff immunity confer protection on those patients who cannot be or

have not been effectively vaccinated themselves, while also allowing the

institution to remain more fully staffed.

 

_Terence L. Kindlon_ (http://www.kindlon.com/TerenceKindlon.html) , a

lawyer for three nurses who sued the state, asserting that the order violated

their civil rights, said the judge’s ruling was a victory. New York was the

only state in the country to mandate vaccinations for health care workers,

he said.

The nurses — Lorna Patterson, Kathryn Dupuis and Stephanie Goertz — work

in the emergency room at _Albany Medical Center_ (http://www.amc.edu/) , a

regional trauma unit.

“These are not libertarians, they are not lefties, they are not right-wing

lunatics,†Mr. Kindlon said of his clients in a phone interview on Friday. “

They are health care professionals, and they think the vaccination is not

going to be good for them. They have no confidence that either the seasonal

flu vaccine or H1N1 vaccine is going to do any good for them.â€

Justice McNamara consolidated the nurses’ suit with two other lawsuits,

brought by the _New York State Public Employees Federation_

(http://www.pef.org/) and _the New York State United Teachers Union_

(http://www.nysut.org/)

, which also challenged the regulation.

Mr. Kindlon said of his clients: “They basically were being

administratively ambushed. This regulation came out of the Health Department

during the

dog days of August. People weren’t aware of it until September. Then they

were suddenly advised that the drop-dead rate for receiving the vaccination

from the state was Nov. 30.â€

The hospital imposed its own deadline — mid-October — for vaccinations

for its employees, Mr. Kindlon said.

The state is all but certain to fight the lawsuits and seek enforcement of

the mandate. At a legislative hearing on Tuesday, Dr. Guthrie Birkhead, a

state deputy health commissioner, _defended the mandate_

(http://www.health.state.ny.us/commissioner/testimony/2009-10-13_mandatory_vacci\

ne_testimony.htm

) , saying, “Health care settings are no different than any other setting

where vaccination is the most effective method of preventing influenza.â€

The issue of mandatory vaccinations has divided health care workers and

even experts. The _New York State Nurses Association_ (http://www.nysna.org/)

, for example, has been monitoring the situation but not taken an official

position against the requirement.

The Public Employees Federation, which has about 5,000 members covered by

the regulations, said it encouraged its members to be vaccinated against

the flu but opposed making the vaccine a condition of employment.

Patricia Finn, a lawyer for Suzanne Field, a nurse from Poughkeepsie,

N.Y., who has filed a lawsuit in State Supreme Court in Manhattan challenging

the mandatory vaccinations, said on Friday that her case would proceed

despite the Albany restraining order, but added about the temporary restraining

order:

 

We’re absolutely thrilled about it. I’m very pleased that the whole

process has been slowed down. That’s what we’re so concerned about, the

process

of vaccinating. It’s not like getting your teeth cleaned; it’s pretty

serious. It shouldn’t be taken lightly. So we were happy about this

 

 

 

 

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