Guilford County mom and teen son say he was vaccinated without their consent. Appeals court says law shields vaccinators.

News & Record - 3/25/2024

Mar. 22—A Guilford County mother and her teenage son sued the Guilford County Board of Education and the nonprofit Old North State Medical Society Inc. in 2022 claiming he was vaccinated for COVID-19 in 2021 against his own stated wishes and without parental permission.

However, the N.C. Court of Appeals ruled this month to uphold a lower court ruling dismissing the claim. The court cited the "sweeping breadth" of legal immunity conferred by a 2005 federal law known as the Public Readiness and Emergency Preparedness Act, which relates to countermeasures taken during declared public emergencies.

Despite the "egregious conduct alleged in the case," Appeals Court Judge April Wood wrote that the court was "constrained" to agree that federal law shields the defendants in the case. The federal law, she wrote, explicitly trumps any otherwise applicable state laws.

Parent Emily Happel and son Tanner Smith said that Smith, then a 14-year-old Western Guilford student and football player, was required by the district to get a COVID-19 test in order to remain on the team, due to what the district said was an outbreak of cases among the football players.

They said Smith got a ride from his stepfather to a clinic held on the campus of Northwest Guilford High School, where Smith expected to be tested for COVID-19.

Instead, they said, clinic operators tried and failed to reach Happel on her phone to get her permission to give Smith the COVID-19 vaccine.

The clinic operators did not reach out to Smith's stepfather, who was waiting in the car outside, they said. According to their complaint, Smith "indicated that he did not want a vaccine and that he was just expecting a test," but was then given the COVID-19 vaccine by a clinic worker.

Happel and Smith sued Guilford County Schools and Old North State Medical Society Inc. for battery and for violation of their state and federal constitutional rights.

When asked if they planned to appeal the Court of Appeals ruling, their lawyer Steven Walker said in an email, "We're reviewing all available options. I'm not quite ready to make any announcements yet as to our plans."

The Guilford County Board of Education agreed the clinic took place on a district campus, but argued it was not administering the clinic, and should not be included with Old North State Medical Society in the lawsuit.

In its motion to dismiss, Old North agreed that Smith received a COVID-19 vaccine dose, but denied some other parts of the complaint.

It denied the plaintiffs' claim that, "Tanner was shown to a seat, and the workers at the clinic attempted to contact Mrs. Happel, without success, to gain consent to give Tanner a COVID-19 vaccine," and also denied that Smith "indicated he did not want a vaccine and was just expecting a test."

In the same motion to dismiss, Old North also said it lacked sufficient information to know if Happel gave consent for a COVID-19 vaccine to be administered to Smith. It did not provide any alternate version of what happened in the court documents.

Under the 2005 federal law, the Secretary of the U.S. Department of Health and Human Services can issue what's known as a "PREP Act" declaration.

It's a form of emergency declaration specifically for providing legal immunity and it is not dependent on other forms of emergency declaration.

Previous PREP Act declarations have offered legal immunity related to measures to combat things like Zika Virus and Anthrax. A declaration was made in 2020 for the COVID-19 pandemic, extending liability protection for measures to fight COVID-19, including vaccines.

According to the appeals court, the act provides immunity "with respect to all claims for loss."

The appeals court cited a few other examples of cases from other states where courts found that PREP Act legal immunity applied, such as in Cowen v. Walgreen Co., where "the plaintiff alleged that she visited a Walgreens store for a flu vaccination but that a Walgreens employee administered a COVID-19 vaccination to the plaintiff without her knowledge."

The PREP Act provides an exception for a "federal cause of action against a covered person for death or serious physical injury proximately caused by willful misconduct," however, Wood wrote, the plaintiffs "have not made any such allegations in their complaint."

Jessie.Pounds@greensboro.com

336-373-7002

@JessiePounds