Vaccination against COVID-19 has now also started in the Netherlands. We saw on January 6, 2021 that nursing home worker Sanna Elkadiri was the first person in the Netherlands to be administered the vaccine. Minister De Jonge was there and heralded the start of the vaccination campaign. He spoke of an “insane moment.” Diederik Gommers was also enthusiastic after being vaccinated and thought it was “really a great feeling.”.
The vaccination is seen by many as an important step toward ending the misery caused by COVID-19 in recent times. It is a means of returning to our normal lives, meeting people again, and embracing loved ones again.
In a previous blog wrote my office mate Irene Timmermans On the possible liability of the producer of the vaccine, when the vaccine causes harm. In this blog, I elaborate on the potential liability of the administering provider and the potential liability of the central government.
Liability of caregiver
Giving vaccines is human work and is carried out by doctors, nurses or other care workers. Considering that there are approximately 17.5 million people in The Netherlands, it is easy to calculate that in the coming period, millions of shots will be given by social workers. And we also know that where there are cuts, there are chips.
When a health care provider gives the vaccination incorrectly due to medical carelessness, and therefore injury or death damage is caused to a person, the caregiver may be liable and the caregiver's (insurer of the) caregiver must compensate for these damages. Consider, for example, failure to sterilize a needle, or improperly placing the vaccination so that it is not absorbed by the body.
As my office mate Marco Zwagerman wrote in a previous blog, it seems bitter and wry to hold caregivers liable for damages precisely because these are the heroes fighting at the forefront to stop this epidemic. The liability law has, however, built in sufficient safeguards that ensure that a social worker (or his insurer) does not simply have to pay someone else's damages.
First, it will be necessary to consider whether the social worker has a medical error made. Would another caregiver have done the same thing under these corona conditions? If the caregiver deviated from what a colleague would have done under the same circumstances, medical malpractice may have occurred.
Second, it is conceivable that the corona circumstances could lead to the fact that the caregiver is not liable, even if it is established that he made a mistake. For liability also requires that the medical error be attributable to the caregiver.
Finally, my office colleague Marco Zwagerman notes in his blog that the victim must prove (i) that a mistake was made and (ii) that damage was caused as a result. That is a heavy burden of proof.
In other words, holding a health care provider liable for carelessness in administering the vaccine causing harm to another should only be done after a careful investigation, but remains - even in these special coronation times - a possibility for the victim that should not necessarily be shunned.
Liability of the central government
Different types of vaccines from various manufacturers are included in the vaccination strategy of the Central government. The central government urges vaccination against COVID-19. In doing so, it is incumbent on the central government to provide full and adequate information to potential users about the potential side effects of the various COVID-19 vaccines, as well as the extent to which danger of side effects from use of the various COVID-19 vaccines have or have not been identified.
If, in retrospect, one of the COVID-19 vaccines used in the Netherlands turns out to have (serious) side effects, it will be necessary to investigate (i) whether the central government gave the correct advice to be vaccinated with the COVID-19 vaccine in question and (ii) whether the central government failed to provide timely and complete information about the possible dangers of vaccination with the COVID-19 vaccine in question.
In other words, it will then have to be examined whether the Central Government acted with sufficient care towards these duped vaccinated persons. If this is not the case, then the Central Government may have acted unlawfully towards this group and the Central Government must compensate (in part) for the injury or death damage caused as a result. In addition, the manufacturer of the COVID-19 vaccine in question can also be sued, as my office colleague Irene Timmermans described in her blog.
In conclusion
I sincerely hope that the scenarios outlined above will remain theory, and not paint a dark future picture. Therefore, for now, I prefer to join Gommers' and De Jonge's enthusiasm in the hope that the vaccination program will be a great success, and that in a while we can meet again without restrictions.
Amsterdam, Jan. 14, 2021
If you have questions about this blog, please contact the author, Laura-Jean van de Ven.