North Carolina family can sue over COVID-19 vaccine administered without consent, court rules

A North Carolina mother and her son can sue a public school system and a doctors’ group for allegedly giving the boy a COVID-19 vaccine without consent, the state Supreme Court ruled.

The ruling handed down Friday reverses a lower-court decision that a federal health emergency law prevented Emily Happel and her son Tanner Smith from filing a lawsuit.

Both a trial judge and the state Court of Appeals had ruled against the two, who sought litigation after Smith received an unwanted vaccine during the height of the coronavirus pandemic.

Smith was vaccinated in August 2021 at age 14 despite his opposition at a testing and vaccination clinic at a Guilford County high school, according to the family’s lawsuit.

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The teenager went to the clinic to be tested for COVID-19 after several cases among his school’s football team, the lawsuit says. He did not anticipate that the clinic would also be administering vaccines. He told staff at the clinic that he did not want a vaccination, and he did not have a signed parental consent form to receive one.

But when the clinic was unable to reach his mother, a worker instructed a colleague to “give it to him anyway,” Happel and Smith claim.

Happel and Smith filed the lawsuit against the Guilford County Board of Education and the Old North State Medical Society, an organization of physicians who helped operate the school clinic. The mother and son made accusations of battery and alleged that their constitutional rights were violated.

Last year, a panel of the intermediate-level appeals court ruled unanimously that the federal Public Readiness and Emergency Preparedness Act shielded the school district and the physicians’ group from liability. The law places broad protections and immunity on various people and organizations who perform “countermeasures” during a public health emergency.

An emergency declaration in response to COVID-19 was made in March 2020, activating the federal law’s immunity provisions, the state’s high court noted on Friday.

Chief Justice Paul Newby wrote in the prevailing opinion that the law did not prevent the mother and son from suing on allegations that their rights in the state constitution had been violated. He said a parent has the right to control their child’s upbringing and the “right of a competent person to refuse forced, nonmandatory medical treatment.”

Newby wrote that the law’s plain text prompted a majority of justices to conclude that its immunity only covers tort injuries, which is when someone seeks damages for injuries caused by negligent or wrongful actions.

“Because tort injuries are not constitutional violations, the PREP Act does not bar plaintiffs’ constitutional claims,” he said.

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The court’s conservative justices backed Newby’s opinion, including two who wrote a separate opinion suggesting the immunity found in the federal law should be narrowed further.

Associate Justice Allison Riggs, a liberal who wrote a dissenting opinion, said that state constitutional claims should be preempted from the federal law and criticized the court’s majority for a “fundamentally unsound” interpretation of the constitution.

“Through a series of dizzying inversions, it explicitly rewrites an unambiguous statute to exclude state constitutional claims from the broad and inclusive immunity,” Riggs said.

The Associated Press contributed to this report.