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Tuesday, November 10, 2009

Fraud and Deceit

"Fraud."

"Deceit."

They are both such ugly, ugly words.

It is basically the equivalent of calling someone a liar.

It's defined in the legal dictionary as "the intentional use of deceit, a trick or some dishonest means to deprive another of his/her/its money, property or a legal right."

In Arkansas, you can sue someone for deceit. In order to recover for deceit, the Plaintiff has to prove the following five elements:

(1) that the Plaintiff has sustained damages;

(2) that a false representation of a material fact was made by the defendant;

(3) that the defendant either knew or believed that her representation was false or knew or believed that she did not have a sufficient basis of information to make the representation;

(4) that the defendant intended to induce the plaintiff to act or to refrain from acting in reliance upon the misrepresentation; and

(5) that the plaintiff justifiably relied upon the representation in acting or refraining from acting and as a result sustained damages.

According to the Arkansas Model Jury Instructions, "[a] fact or statement of fact is material it it was a substantial factor in influencing the plaintiff's decision. It is not necessary, however, that it be the paramount or decisive factor, but only one that a reasonable person would attach importance to in making a decision."

I think an illustration is in order.

Let's go with the swine flu vaccine. Obviously, everyone knows that supplies are limited at this time, and not everyone who wants the swine flu vaccine will receive them while supplies are so limited. The Bitlet was able to get both the swine flu and seasonal flu vaccines, because she is only 6 months old and is among those most at risk of serious complications from the swine flu. Stephen and I have not yet obtained the vaccine, because we aren't in the priority groups.

Others identified as belonging the priority groups for H1N1 include pregnant women, household contacts and caregivers for children younger than 6 months of age, healthcare and emergency medical services personnel, all people from 6 months through 24 years of age, and persons between the ages of 25 and 64 years of age who have health conditions associated with higher risk of medical complications from influenza. This list is available at the Arkansas Health Department's website.

With the limited supply not everyone is going to receive the vaccine on demand at their convenience. In fact, a recent caveat was added recently that children ages 5-18 with underlying health conditions, such as asthma, for example, would be added to the priority groups that could receive the vaccine at the mass flu clinics that were scheduled in our state recently.

Not every 5-18 year old child is going to get the swine flu vaccine at the free mass clinics--just those who have health conditions that place them at a higher risk of complications from the flu.

Imagine if a parent takes his child to a free mass clinic and is advised that his child cannot have the vaccine, because it is being reserved for those children in that age group with specific health conditions. So the parent leaves and goes to another worker and tells her that his son has asthma and, as a result, obtains the vaccine for a child that does not, in fact, have asthma.

Is that fraud or deceit?

Let's look at the elements of deceit again:

(1) that the Plaintiff has sustained damages. Arguably the state has sustained damages in this case, because the State has paid for the limited quantities of vaccine that are currently available to those who have been identified as being the most needy. The vaccine is not being distributed for free by the pharmaceutical companies. The State paid for it for specific persons clearly identified by representatives of the State. A child of a certain age who doesn't have an underlying health condition, such as ashtma, doesn't qualify. So if a vaccine is administered to a child without the complication, then the State is out that money, and another child is out that dose. Arguably, there are damages.

(2) that a false representation of a material fact was made by the defendant. I think this element of the tort of deceit is satisfied by one who lies and claims that his child has asthma or some other respiratory condition, when in fact that child has no such condition;

(3) that the defendant either knew or believed that her representation was false or knew or believed that she did not have a sufficient basis of information to make the representation. If the parent truthfully tells one worker that his child is not eligible for the vaccine, leaves, returns to the clinic, and tells another worker that his child does have an underlying respiratory condition, it could be said that he knew that his representation was false.

(4) that the defendant intended to induce the plaintiff to act or to refrain from acting in reliance upon the misrepresentation. The parent had already been told that his child was not eligible for the vaccine, and returned to the clinic and concocted a respiratory condition that had not existed that morning in order to induce a state employee or volunteer to administer the vaccine to a child who was not in the high-risk group. I think that the parent who intended to obtain the vaccine and was willing to lie in order to obtain it could satisfy the element.

(5) that the plaintiff justifiably relied upon the representation in acting or refraining from acting and as a result sustained damages. If the State employee or volunteer administered the vaccine believing that the child had a respiratory condition, when he or she would otherwise not have administered the vaccine to that child, I believe this element is satisfied.

Fraud and deceit are ugly words, but the use of fraud or deceit is ugly as well, particularly when it means that you have basically determined, unilaterally, that your own family's health and welfare is more important than someone else's. If a vaccine is given to a child who did not fit the criteria, while another child who does fall within a priority group is denied a vaccine, and it is due to the dishonesty of a parent, it is ugly. It is uglier still, when more quantities will be made available in the future. It's not like the State got quantities to be distributed for free and no more would be made available in the future. The State got quantities for those who most need it now, and more will become available in the future. Everyone will get the vaccine who wants it -- in due time.

Not when we want it, and it might not even be free, but it will be available to all.

Taking it, when you know someone else is identified as needing it more, rather than waiting your rightful turn is wrong. It's deceitful, and it's fraudulent.

And I suspect it is happening on a fairly consistent basis.

At the same time, we are talking about our children. That creates a dilemma for parents. Is it okay to lie in order to obtain a vaccine for a child when the experts are reporting that children are dying from the disease the vaccine is designed to prevent? Many parents would say, yes, even if it is a lie, or deceitful, or amounts to fraud against the State.


This post contributed by
Caroline Curry Lewis. View her website at http://attorneyatmom.blogspot.com


2 comments :

  1. Very cool to see my work here! Thanks!

    ReplyDelete
  2. Your last paragraph made me think of this:
    What about parent's who don't vaccinate their children because they believe that it may harm their child? They are putting the children who cant receive vaccines but are very susceptible to illnesses (children going through chemotherapy for example) at risk. Although it's not in the vein of fraud or deceit, it does speak to the dilemma of is my child more important than yours? (since science refutes the claim that vaccines are harmful)
    just food for thought.

    ReplyDelete

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