HealthLawProf Blog

Editor: Katharine Van Tassel
Concordia University School of Law

Monday, October 19, 2009

Swine Flu Vaccine Shortfall, H1N1 Found in U.S. Swine and Mandatory Vaccination of Health Workers in NY Blocked’s blog The Great Beyond calls attention to three Swine Flu stories of interest.  

The first story relates to the vaccine shortfall and reports that "the US Centers for Disease Control and Prevention (CDC) now expects to have 28-30 million doses of swine flu vaccine by the end of October — down from the 45 million doses predicted in August and previous estimates of 120 million forecast earlier in the summer.”

The problem is caused by an inadequate supply of  antigen. The antigen is the part of the virus that is used in the vaccine to trigger the body to create the antibodies that are necessary to the body’s immune response. See also NY Times, AFP, Reuters, and Bloomberg.

The second story relates to the discovery of the first case of H1N1 in U.S. Swine. The U.S. Department of Agriculture has announced that they may have identified cases of Swine Flu in swine at the Minnesota state fair. If confirmed, these will be the first cases of the disease among American domestic livestock. Further tests are being performed. (USDA statement).

The third story reports that a judge has issued an order halting the mandatory vaccination of health workers in New York.  Three nurses who filed suit to block mandatory vaccination for both seasonal and H1N1 Flu were granted a temporary restraining order on Friday. As the New York Times reports:

The temporary restraining order by the judge, Thomas J. McNamara, an acting justice of the State Supreme Court in Albany, comes amid a growing debateabout the flu vaccine. On Friday afternoon, the State Department of Health vowed to fight the restraining order, saying that the authorities “have clear legal authority” to require vaccinations, and noted that state courts had upheld mandatory vaccinations of health care workers against rubella and tuberculosis. Justice McNamara scheduled a hearing for Oct. 30 on the three cases before him, involving the flu vaccine.

The state health commissioner, Dr. Richard F. Daines, through the State Hospital Review and Planning Council, issued a regulation on Aug. 13 ordering health care workers to be vaccinated by Nov. 30 or face fines.

Dr. Daines later explained the reasoning behind the vaccine, saying in a statement on Sept. 24:

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, 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.


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