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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