Vaccine Injury Compensation Program
A Legal Moment

Vaccine Injury Compensation Program

A Little-known Federal "No-Fault" Program Compensates Victims of Vaccine Injuries.

  As the national debate continues over the competing interests of public health versus individual risk regarding compulsory vaccinations of children and adults, comparatively few people know of the Federal compensation program for victims of vaccine injuries.

  Enacted in 1988, the Vaccine Injury Compensation Program (VICP) has the dual goals of expediting compensation to individuals who can demonstrate that their illnesses are directly the result of a vaccine, and protecting the companies who produce vaccines from repetitive litigation.

   A person who believes he or she has been injured from a vaccine initiates a VICP claim by filing a "Petition" with the United States Court of Federal Claims in Washington, D.C..  Rather than suing the pharmaceutical company that produced the vaccine, the Petitioner names the United States as the “Respondent.”  An attorney for the United States is then required to respond to the Petition, either disputing the Petitioner’s claim, conceding that the Petitioner is entitled to compensation, or requesting additional information.

   How “expeditiously” a claim is actually handled by the Court turns on a number of factors.

“Table” or “Off-table” Injury

   First, injuries are classified as either “Table Injuries” or “Off-table Injuries.” Table injuries refer to the associated injuries listed in the “Vaccine Injury Table” as contained in a federal regulation (42 C.F.R. § 100.3(a)).  If an individual’s injury is listed in the Table with the correlated vaccine – assuming other requirements are met – then the law presumes that the injury is the result of the vaccination, thus paving the way for expedited handling of the claim.

   An “Off-table Injury” is one where, although the vaccine itself is listed on the Table, no particular injury is associated with it.  In “Off-table Injury” cases, the Petitioner has the burden to demonstrate that the injuries sustained were caused by the vaccine.  

   On occasion a given "Off-table Injury" has already been so frequently associated with a given vaccine, that the Court may essentially treat the claim as a de facto “Table Injury.”

   For example, annual flu vaccines are a category of vaccines covered by the Program for which there is no specified injury, thus rendering a flu vaccine-based injury an “Off-table” case.  However, a common injury associated with the flu vaccine is the contraction of Guillain–Barré Syndrome (GBS).  Because so many VICP cases have already been litigated over GBS, both the United States and the Court may be more inclined to conclude that the injury is related to the vaccine, again resulting in a comparatively expeditious handling of the Petition.

   A second factor bearing on how quickly a case is processed is whether the Petition itself is complete upon filing.  Typically, a Petitioner must compile, organize and review all cogent aspects of his or her medical records relating to the injuries claimed together with prior medical records establishing the Petitioner’s “pre-injury” health condition.  A Petition that lacks important records or requisite expert opinions is likely to result not only in substantial delays in processing – sometimes by several years – but denial of the claim.

Two-Step Claim Process

   VICP cases are “bifurcated,” meaning that the Court first determines whether the Petitioner is “entitled” to compensation before it considers what “damages” arose from the alleged “injury.”  In the initial phase of the litigation, all of the parties’ evidence is directed at establishing that the injury is caused (or exacerbated) by the vaccine.  Once entitlement is proved or admitted, the Court will then consider evidence of how the Petitioner has been damaged by that injury.

   The types of damages allowed under the Program include pain and suffering, lost wages, and past and future medical needs.  Where the injury is expected to require continuing medical care and treatment well into the future, it may be necessary to retain a “life care planner” to evaluate the Petitioner’s on-going medical needs.  Damages can be, and often are, calculated in the hundreds of thousands of dollars and, through 2009, the Program has paid out more than $2 billion, according to the National Vaccine Information Center.

   Although the initial Petition will be handled by a Court-appointed “Special Master,” if the Special Master’s ultimate decision is unsatisfactory to either the Petitioner or the Respondent, it can be appealed successively to higher courts.

   An individual is free to file and prosecute his or her Petition without the services of an attorney, but doing so is fraught with peril.  Knowledge of the process, experience in advocacy and the presentation of an effective claim are essential.  The good news is that, as part of the Program, a Petitioner’s attorneys’ fees and costs will be paid by the Government at the conclusion of the case.  In most cases, this is true even if the Court ultimately determines that the Petitioner is not entitled to compensation.  The only “catch” is that the attorney must be admitted to practice before the Court of Federal Claims. The Court of Claims maintains a list of qualifying attorneys organized by State. You may also go on its website and click on “Vaccine Attorneys.”

   If you believe that you have been injured by a vaccine, it is in your best interest to seek advice from a qualifying attorney regarding a potential VICP claim.  We at Marshall, Roth & Gregory, PC are always ready to assist you with these claims or your other legal needs.


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Philip Roth is a founding shareholder at Marshall, Roth & Gregory, PC. One of the firm's principal litigators, Philip's practice includes prosecuting vaccine injury petitions before the U.S. Court of Federal Claims.
To receive more information on this topic or to suggest topics for future editions of "A Legal Moment," feel free to contact Philip by email ( or telephone (828.281.2100).

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