The Maine Supreme Judicial Court upheld a lower court ruling that school medical staff cannot be held liable for giving a COVID-19 vaccine to a minor without obtaining parental consent. PREP Act experts said it’s time to sunset the law that protects people who inject children with COVID-19 vaccines even when parents object.
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The Maine Supreme Judicial Court has upheld a lower court ruling that school medical staff who gave a COVID-19 vaccine to a minor without obtaining parental consent cannot be held liable.
On March 4, the court ruled that school medical staff were protected under the Public Readiness and Emergency Preparedness Act (PREP Act).
The PREP Act provides a liability shield to “covered persons” — including those who administer COVID-19 or other countermeasures — during a public health emergency. COVID-19 vaccines are covered under the PREP Act because they were rolled out under emergency use authorization (EUA).
In November 2021, J.H., a minor, was given a dose of the Pfizer-BioNTech COVID-19 vaccine at Miller School in Waldoboro, Maine.
In May 2023, J.H.’s parents Siara Harrington and Jeremiah Hogan, who said they did not consent to the vaccination, sued Lincoln Medical Partners, MaineHealth and pediatrician Dr. Andrew Russ.
The lawsuit, originally filed in Lincoln County Superior Court, challenged the PREP Act’s liability shield. The complaint alleged battery, negligence, false imprisonment, infliction of emotional distress and tortious interference with parental rights.
In April 2024, the Maine Superior Court dismissed the lawsuit, finding that the PREP Act granted immunity to the defendants.
J.H.’s parents appealed to the Maine Supreme Judicial Court in August 2024, arguing that the PREP Act does not protect practitioners from liability in cases involving nonconsensual medical interventions.
The appeal also referenced the Project Bioshield Act of 2004, which states that people must have the “option to accept or refuse administration” of EUA products.
In its ruling, the Maine Supreme Judicial Court found that the staff who administered the vaccine to J.H. were immune under the PREP Act because they were “covered persons” as defined by the act and because the vaccine was classified as a “covered countermeasure” and was administered during a public health emergency.
The court also ruled that the lawsuit contained no viable claim for willful misconduct — the only exception to the PREP Act’s liability shield — and that the PREP Act supersedes state law, even for battery claims.
F.R. Jenkins, an attorney for the plaintiffs, disagreed with the decision. He said the EUA statute “clearly states that Americans have the right to ‘accept or refuse’ covered countermeasures” but that the court did not consider this in its ruling.
“There is no meaningful right to accept or refuse if one cannot bring an action for civil money damages to enforce the right.” Jenkins said the PREP Act was not meant to supersede informed consent.
He added:
“It is simply inconceivable that Congress intended to abolish the doctrine of consent to medical treatment for a whole class of claims when the doctrine is both firmly entrenched in common law precedent and tradition and the doctor-patient relationship and the consent underpinning it have always been the subject of state rather than federal regulation.”
‘Unconscionable’ ruling in Maine influenced by similar case in Vermont
Attorney Ray Flores, senior outside counsel to Children’s Health Defense (CHD) and an expert on the PREP Act, said the Maine court ruling is part of a trend in which state and federal courts have ruled in favor of the PREP Act’s immunity provisions.
“There is more than enough case precedent, going back 13 years, for the PREP’s preclusion for battery of a minor,” Flores said. “The Maine opinion cites the cases.”
The Maine ruling comes just a week after the U.S. Supreme Court refused a petition to review a lower court’s ruling in a similar lawsuit in Vermont, Politella v. Windham Southeast School District. In that case, the school gave the vaccine to a 6-year-old boy, despite his and his parents’ objections.
In July 2024, the Vermont Supreme Court ruled that the PREP Act shielded school officials from liability.
John Klar, attorney for the plaintiffs in the Vermont case, said the U.S. Supreme Court’s subsequent decision to deny the plaintiff’s petition means the Politella case remains binding, but “only in Vermont, and only for now.”
“The Supreme Court’s denial of the petition doesn’t set precedent and doesn’t render an opinion on the merits of the case,” Flores said.
However, according to Klar, the Maine Supreme Judicial Court “relied on the Vermont Supreme Court’s atrocious ruling to reach a similarly unconscionable result.”
Wayne Rohde, author of “The Vaccine Court: The Dark Truth of America’s Vaccine Injury Compensation Program” and “The Vaccine Court 2.0,” said the two rulings show that “our state and federal court system has no interest in supporting true informed consent.”
Klar said courts have misinterpreted the PREP Act, which “does not by its terms state that it extends immunity beyond vaccine injuries to violate the established constitutional rights of parents to make medical decisions for their children.”
As a result, intentional torts, such as battery, are shielded from liability, Klar said. “Even a forced vaccination would be protected by these decisions,” he said.
According to Klar, U.S. Supreme Court precedent has upheld “the fundamental rights of parents to make decisions regarding the care and management of their children.”
The rulings in Maine and Vermont have “perverted federal constitutional law” by subordinating this precedent to the federal government’s “compelling interest in legislating to address public health emergencies,” Klar said.
Another similar case is pending in North Carolina, where the state Supreme Court is considering an appeal to overturn the dismissal of a case involving a 14-year-old boy who was given the COVID-19 vaccine in 2021 without his or his parents’ consent.
The child’s parents alleged battery and violation of a state statute prohibiting the administration of EUA products without parental consent. In February 2023, the trial court dismissed the case, and in March 2024, the North Carolina Court of Appeals upheld the dismissal.
In July 2024, CHD filed an amicus brief urging the North Carolina Supreme Court to overturn the dismissal. Rohde said he is “very concerned” that the Maine and Vermont rulings may influence the North Carolina court’s decision.
Calls to ‘sundown’ PREP Act and reassert ‘right to accept or refuse’
In December 2024, the Biden administration extended the liability shield for COVID-19 countermeasures through Dec. 31, 2029 — the 12th extension since 2020.
Rohde said the U.S. Department of Health and Human Services (HHS) and the White House should “sundown the PREP Act immediately” and “provide guidance to the courts on true informed consent and the preservation of parental rights.”
Last month, the U.S. Senate confirmed Robert F. Kennedy Jr., former chairman of CHD, as HHS secretary.
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Jenkins called on HHS to take action. “The EUA statute states that the Secretary of HHS should take whatever steps are necessary to ensure that everyone understands that there is a right to accept or refuse.”
Jenkins said HHS should clarify that “the PREP Act does not bar actions for civil money damages based on the failure to seek and obtain basic consent” — and called for broader advocacy efforts if the U.S. government fails to act.
“It is time to take aggressive action to protect children … and the entire American public, from further PREP Act abuse,” Jenkins said.
Michael Nevradakis, Ph.D., based in Athens, Greece, is a senior reporter for The Defender and host of "The Defender In-Depth" on CHD.TV.
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