Injury Compensation

Vaccine Injury Compensation

The Vaccine Injury Compensation Program (VICP) is a federal program created by congress in 1986 to provide compensation to people found to be injured by certain vaccines. The VICP is a no-fault alternative to the traditional tort system for resolving vaccine injury claims. “No-fault” is a legal term which means the person filing the claim (plaintiff) does not need to prove negligence, recklessness, willfulness or any other fault. Instead, the plaintiff only need prove to have met legal standards for having been injured by vaccines; these standards do not need to meet the scientific standards of causation.

A vaccine claim differs from a traditional lawsuit in several ways:

First, it is not a medical malpractice suit or a defective product suit; the plaintiff does not sue the vaccine manufacturer or the doctor. Instead a federal court hears the case and compensation is awarded from the VICP Trust Fund. The Trust Fund is funded by a $0.75 excise tax paid by vaccine manufacturers on each dose of vaccine that is made and administered by the Department of Health and Human Services.

Secondly, the monetary damages for vaccine injury victims, including attorneys’ fees and costs, are paid by the trust fund, which means the plaintiff keeps all of their settlement or award without owing any percentage to the attorney.

Third, vaccine injury claims are filed in the US Court of Federal Claims in Washington, DC, and are heard by a special master rather than a judge. The case is defended by a lawyer from the Department of Justice, who represents the Secretary of Health and Human Services. The special master, who may have little or no scientific or medical training, then determines if the individual suffered a vaccine injury. If so, compensation will be awarded for past and future medical needs, future lost wages, and past and future pain and suffering.

Some of the rulings by the “Vaccine Court” disagree with current research and science. A classic example is the case of Dorothy Werderitsh. In 2006 Werderitsh claimed her multiple sclerosis had been caused by a hepatitis B vaccine. The court found in her favor despite several studies that had shown hepatitis B vaccine neither causes nor exacerbates the disease.

Why was the VICP enacted?

In the 1970s and into the mid-1980s there was a substantial increase in the number of lawsuits filed against the major pharmaceutical companies in the US on behalf of those presumably injured by the diphtheria, pertussis, tetanus (DPT) vaccine. Although this hypothesis has been repeatedly proven false, courts at the time determined fault and damages were awarded to plaintiffs despite the lack of scientific evidence to support vaccine injury claims. The litigation was so intense that prices soared and many vaccine producers stopped making vaccines. Manufacturers of the pertussis vaccine went from 8 manufacturers to 1, measles manufactures from 6 down to 1. The situation proved so dire that the government became seriously concerned that children would no longer be able to be vaccinated and epidemics would return. Thus was born the National Childhood Vaccine Injury Act in 1986. The goal of the act was 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.

We know that no vaccine is 100% risk free. If the “vaccine court” or federal court does not agree that the vaccine caused an injury and does not award damages, the plaintiff can still attempt to sue the pharmaceutical company in a civil or state court. However, the person seeking compensation must go through the federal court first. Given the low standard of proof of injury required by the federal court, it is unlikely a plaintiff could win in state or civil court where large pharmaceutical companies could hire formidable law teams and the standard of proof would be higher.

Who is Hannah Poling and what does her case mean?

In 2008 the federal government agreed to award damages to the family of Hannah Poling, a 19-month-old girl who developed autistic-like symptoms after receiving 5 shots to protect against 9 diseases on a single day in 2001. Hannah had had frequent fevers and ear infections as an infant, and since she was often ill, many of her shots had been delayed.

Hannah was diagnosed months later with encephalopathy (a brain disease) caused by a mitochondrial enzyme deficit. Hannah regressed and developed autism-like symptoms. Because encephalopathy following measles-containing vaccine is a compensable injury, Hannah was compensated by the US government.

Many people took this as ruling to mean that the government had finally conceded that vaccines cause autism. That is not the case, and even if it had been, there would be no science to support it. The Poling case was dropped as a test case from the Autism Omnibus because it is so unusual and atypical. However, the settlement was based on the observation that Poling had a rare genetic mitochondrial disease that may have been exacerbated by a series of vaccines that she received. Most children with autism do not seem to have mitochondrial disorders, but the case was conceded without proof of causation.

Mitochondrial disorders of the sort suffered by Hannah are genetic and extremely rare (an estimated 5.7 individuals per 100,000 worldwide). We now know that children with mitochondrial disorders are prone to encephalopathy in response to stress or fever that can cause them to regress. The government decided that the temporal course of vaccination and regression was close enough that, under the law, “compensation is justified.”

Hannah Poling’s case was originally part of a much larger proceeding known as the autism omnibus trial.

The omnibus trial came from over 4,800 lawsuits that were filed by families claiming that thimerosal contained in earlier vaccinations and the measles in the mumps, measles, rubella (MMR) vaccine played a causal role in the development of autism in their children. In order to better handle the overwhelming caseload, three “special masters” were appointed to hear the evidence in the case. The hearings were held by the US Court of Federal Claims in 2008.

In the end, the court determined there was no evidence given of a causal link between vaccines and autism and thus ruled against the families.

Here is a summation of the Poling court case:

Medical personnel at the Division of Vaccine Injury Compensation, Department of Health and Human Services (DVIC) have reviewed the facts of this case, as presented by the petition, medical records, and affidavits. After a thorough review, DVIC has concluded that compensation is appropriate in this case.

In sum, DVIC has concluded that the facts of this case meet the statutory criteria for demonstrating that the vaccinations CHILD received on July 19, 2000, significantly aggravated an underlying mitochondrial disorder, which predisposed her to deficits in cellular energy metabolism, and manifested as a regressive encephalopathy with features of autism spectrum disorder. Therefore, respondent recommends that compensation be awarded to petitioners in accordance with 42 U.S.C. § 300aa-11(c)(1)(C)(ii).

Why is this important?

People trying to make a case against the routine use of vaccines will frequently fall back to “Because people received money from the government means they were injured without reasonable doubt and therefore the risk of vaccines outweighs the risk of disease.” But that is not what the court is about. True, no vaccine is 100% risk free, but vaccine court does not require the injured party to meet the scientific standard of proving causation.

Sources

Health Resources and Services Administration: National Vaccine Injury Compensation Program

Health Resources and Services Administration: About the Omnibus Autism Proceeding

National Center for Immunization Information

Health Affairs

US Court of Federal Claims

What You Need to Know About the National Vaccine Injury Compensation Program (VICP) (PDF)