What should a parent do if they know (or suspect) their child has been injured by a vaccine?
I will try to answer that question below, along with giving a fly-over of vaccine injury law as it exists today.
For those who lack the time to read all of what I have written, the Cliff’s Notes version of “what to do” if your child has been injured by a vaccine is:
- Get your child to a doctor quickly who can diagnose the onset
- Ask that doctor to document in your child’s medical chart the nature of the illness, disability, injury or condition
- Make sure your doctor documents the time period for the appearance of the first symptom after vaccine administration (this is crucial)
- Call a lawyer like me who can help you understand your legal options
A Little History
Here is a brief history of the law in the U.S. relative to individuals harmed by vaccines. What you will notice is that that this history lesson demonstrates that we have arrived at a place where there is a prejudice built in to our system against families who seek compensation for injuries caused by vaccines. The federal system that handles these claims is Byzantine. The bottom line? You’ll want help if you want to succeed.
If you go back 60 years or so in U.S. law, you will find the Cutter Incident.
The Cutter Incident and Resulting Lawsuits
Vaccine injury victims had few options before an important court case in the 1950s. Back in 1955 200 people were paralyzed and ten died after contracting polio from a polio vaccine. This came to be known as the Cutter Incident, because Cutter Laboratories was the manufacturer of one of the at-fault vaccines. Many injured people and their families filed lawsuits against vaccine manufacturers. In one case involving Cutter Laboratories the California Supreme Court ruled the company was financially responsible for the harm the vaccine caused. This was a significant ruling in U.S. history of vaccine injury law because it paved the way for many similar awards in other legal cases. No federal system existed (at that time) and no centralized uniform standards existed for determining when a vaccine caused an injury. Instead, juries decided these matters on a case by case basis.
Through the 1970s and 1980s, the number of lawsuits brought against vaccine manufacturers increased, and manufacturers made payouts to individuals and families who suffered vaccine injuries, particularly from the diphtheria-pertussis-tetanus (DPT) immunization.
Pharmaceutical companies responded to the rise in injury related payouts by claiming they were being put out of business. They characterized the environment as one of increasing litigation, mounting legal fees, and large jury awards, and warned that if trends continued the U.S. might be left without any manufacturers to provide vaccines.
So in October 1986, the U.S. Congress rode to the “rescue” of Big Pharma. The National Childhood Vaccine Injury Act (NCVIA) ( I will refer to it as the Vaccine Act) was passed into law. Essentially, Big Pharma got immunity from lawsuits and injured people got a new federal bureaucracy in place of their right to a jury trial.
Or to put it differently, prior to October 1, 1988 (the effective date of the Vaccine Act), an individual could pursue an unrestricted lawsuit against a vaccine manufacturer if they or their child was injured by a vaccine. Since that date you are required to apply for compensation from the federal government prior to pursuing a lawsuit.
Although claims under the Vaccine Act were supposed to be handled “quickly, easily and with certainty and generosity” (according to a House report accompanying the 1986 legislation) many claims have taken many years – some more than 10 years! — to be resolved. Jarndyce v. Jarndyce comes to mind. Even the U.S. Health Resources and Services Administration says it takes two to three years to adjudicate a claim after it is filed.
So let’s consider the fairness of the 1986 Vaccine Act.
I have already mentioned that parents of vaccine injured kids for all practical purposes have lost their right to a jury trial and instead now are at the mercy of a federal bureaucracy. That is not progress. But one would expect that the vaccine manufacturers, the corporations who create the products that sometimes harm children, are held accountable in this federal scheme, right?
Not hardly. The National Vaccine Injury Compensation Program (NVICP) (that is the claims system set up by the Vaccine Act) is funded by a tax of $0.75 per vaccine dose, which is collected from vaccine manufacturers by the U.S. Department of the Treasury. But the manufacturers don’t foot the bill. The system is funded by a charge on each dose of vaccine sold. Doctors pay the tax initially when they purchase the vaccines for sale to their patients, but this is passed along to the parents of the child.
So not only are the vaccine manufacturers shielded from jury trials by the Vaccine Act, they are also not responsible for paying one penny of the claims filed as a result of their products. You are!
The NVICP Claims Process
So how does the claim process work? Well, that’s where the Byzantine bit comes in.
Under the NVICP, those with a vaccine injury from a covered (note that not all vaccines are covered by the program) vaccine cannot sue a vaccine manufacturer without first filing a claim with the U.S. Court of Federal Claims. There is a “vaccine injury table” that lists injuries that are presumed to be caused by vaccines but you must first show you meet the table’s time periods.
For instance, the table says that if your child is immunized for Measles, Mumps and/or Rubella and goes into anaphylactic shock within 4 hours or develops encephalopathy (or encephalitis) within 5-15 days, that is presumed compensable. Essentially, to show a “table injury” you have to meet one of the listings in the table and show that the injury’s onset fell within the time period determined by the government.
If your child’s injury does not meet one of the listings in the “vaccine injury table” you must prove that the vaccine caused the injury using medical records and/or expert witness testimony. In the absence of a “table injury” you must show by a preponderance of the evidence something called “causation in fact”, which consists of the following three elements:
- medical causation connecting the vaccination and the injury;
- a logical sequence of cause and effect showing that the vaccination was the reason for the injury; and
- a showing of a proximate temporal relationship between vaccination and injury
Herein lies the rub. If you study the table you will soon notice that very few injuries are listed. And if you study the “Qualifications and Aids to Interpretation” that follow the table you will find mice type replete with exceptions and exemptions and lots of reasons why your claim may not be compensable after all.
The U.S. Department of Health and Human Services publishes the tables here.
So the way the claims process really works is that you need a) to lawyer up and b) get ready to head to Washington (that is where the tribunal sits that hears these claims – the United States Court of Federal Claims). The odds of your child’s injury meeting one of the listings on the injury table are remote and you will most likely need to involve a lawyer in order to prove the vaccine in question caused your child’s injury.
Here are a few examples of federal court rulings that have held that vaccines have caused injuries:
- A ruling holding that the tetanus vaccine caused a particular case of optic neuritis
- A ruling holding that the MMR vaccine caused fibromyalgia
- A ruling holding that the Hib vaccine caused transverse myelitis
- A ruling holding that hepatitis B vaccine caused Guillain–Barré syndrome, chronic demyelinating polyneuropathy, and multiple sclerosis.
- A ruling that a combination of DTaP, Hib, MMR, varicella, and inactivated polio vaccines caused autistic-like symptoms after being received as a series of vaccines in a single day (to the best of my knowledge this is the only ruling admitting a connection between vaccines and autism. There are nearly 5000 other families who have made similar claims but to no avail.)
I realize I am painting a pretty bleak picture of how the claims process works. That may be in part due to my conviction that the American people ought not to be denied their right to a jury trial. Or my views on Big Pharma’s strangle-hold on our politicians. But I think I’m giving you an honest assessment and perhaps one that you will not receive from some other attorneys (who might not want to bite the hand of the system that feeds them). I think you need to know the truth of why the government treats vaccine injured people the way they do.
It may be helpful also to know that compensation payments from NVICP averaged $782,136 per successful claim through 2011. Attorney fees and costs are NOT PAID BY YOU, even if your claim is unsuccessful. Attorney fees and costs are paid directly by the NVICP trust fund.
You should know that compensation for a death resulting from vaccination is capped at $250,000.
The system also will pay for past and future unreimbursed medical expenses, custodial and nursing home care; up to $250,000 for pain and suffering; and loss of earned income.
Yes, you read that right. The system places a top value of $250,000 for the value of the life of a child killed by a vaccine. Or $250,000 for the value of a child’s pain and suffering who has been severely injured by a vaccine. That is perversely low. But you need to know what is achievable under current law.
As of December 1, 2011, the program had awarded $2.35 billion in 2,810 separate claims, including compensation for 390 deaths.
As of May 2013 the program’s trust fund (that is where the money they have collected from the $.075 surcharge per vaccine sold sits) is approaching $4.0 billion.
Summary of the Federal System
To recap, the Vaccine Injury Compensation Program (VICP) was “established to ensure an adequate supply of vaccines, stabilize vaccine costs, and establish and maintain an accessible and efficient forum for individuals found to be injured by certain vaccines.” When you look closely, however, you discover that what this really means is that the program has been put into place to protect vaccine manufacturers and NOT to protect the interests of those injured by vaccines.
At the time of the law’s creation in 1986, Congress said they were committed to setting up a fair, expedited, non-adversarial, less traumatic, less expensive no-fault compensation mechanism alternative to civil litigation.
Yet obtaining compensation has become a highly adversarial, time-consuming, traumatic and expensive process for families of vaccine injured children, and far too many vaccine victims have been denied compensation. Meanwhile, vaccine makers and doctors have enjoyed liability protection and dozens of new vaccines have been added to the childhood vaccine schedule.
Many parents believe it would be more just to return to a jury trial based system without restrictions on suing vaccine manufacturers and doctors for injuries and deaths their children suffer after receiving federally recommended vaccines. Yet under current law the federal government first recommends certain vaccines and then grants immunity to the manufacturers of those vaccines.
Is the law in Georgia more favorable? Can I bypass the federal system and bring my child’s claim under Georgia law?
Oh I wish it were so. For one brief moment in time, it was.
There was a beautiful (I can think of no better word) 2008 Georgia Supreme Court opinion that held that Congress never intended to shield vaccine manufacturers from ALL liability for vaccine injuries and deaths when it could be demonstrated that a safer product could have been marketed.
In American Home Products v. Ferrari (2008), the Georgia justices unanimously held that the National Childhood Vaccine Injury Act does not give a vaccine manufacturer immunity from vaccine injury lawsuits if it can be proven that the company could have made a safer vaccine.
The Court wrote that there is no evidence that “FDA approval alone renders a vaccine unavoidably safe” and said “We hesitate to hold that a manufacturer is excused from making changes it knows will improve its product merely because an older, more dangerous version received FDA approval,” adding that to do so would have “the perverse effect” of granting complete immunity from liability to an entire industry and the Court concluded that “in the absence of any clear and manifest congressional purpose to achieve that result, we must reject such a far-reaching interpretation.”
The Court held that if vaccine injuries could have been avoided by a “feasible alternative design” (of the vaccine) injury victims should be able to seek compensation in the “tort system” (jury trial) not the “compensation system” (the federal VICP). In one wonderful sentence the Court wrote that: “Accordingly, we must not ‘overstate the degree of uniformity and centralization that characterizes’ the Vaccine Act.”
A Court that recognizes the problem with too much centralized government control over matters that should be left to the people (through jury trials). What a breath of fresh air.
But In 2011 the U.S. Supreme Court nixed the Georgia Supreme Court’s decision in the Ferrari case. The U.S. Supremes wrote that the Vaccine Act “preempts all design-defect claims against vaccine manufacturers brought by plaintiffs who seek compensation for injury or death caused by vaccine side effects” and vacated the Georgia decision. So all of the common sense contained in the Georgia Supreme Court’s opinion has been thrown aside and the law of Georgia is back in lock step with the federal system.
If your child has suffered a serious injury from a vaccine – death, life-threatening illness, hospitalization, permanent disability or a birth defect, would you please call me? Even if you do not hire me, I would like to help get you pointed in the right direction.
Thank you for reading.
Attorney Pete Pearson practices law in Atlanta, Georgia and has a special interest in helping families with injured children. He is a father to six and lives with his wife and children near Atlanta, Georgia. He can be reached directly at Six-Seven-Eight 358-2564.