VICP Update
A Legal Moment

GBS and SIRVA Injuries Poised to be Added to Vaccine Injury Table

     HHS Proposes to Upgrade Two Common "Defacto" Table Vaccine Injuries to the Formal Table, Thereby Presuming Injuries Caused by Vaccine and Administration.

   If the United States Department of Health and Human Services (HHS) has its way, the so-called “Vaccine Injury Table” (42 CFR 100.3) – listing covered vaccines and their presumptively-related injuries subject to the National Vaccine Injury Compensation Program (VICP) – will shortly be revised to list two new injuries:  Influenza vaccine-induced Guillain–Barré Syndrome (GBS), and shoulder injuries arising from the improper administration of a given vaccine (a so-called “SIRVA” injury).

   Listing a specific injury in the table is significant because, for purposes of establishing entitlement to compensation under the VICP, the vaccine is presumed to be the cause of the injury.  By contrast, a person who suffers a vaccine-related injury that is not listed on the Table (known as an “Off-table Injury”), may still be compensated but has a higher burden of proof in proving his/her entitlement to compensation because the presumption drops away.  Generally speaking, a claimant with a “Table injury” is likely to receive compensation more quickly than one seeking compensation for an “Off-Table injury.”

   On occasion there may be such a plethora of Petitions already processed in the Program relating to the same vaccine and “Off-table Injury” that the Court treats the claim as a defacto “Table Injury.”  Until now this has included annual flu vaccines resulting in the contraction of GBS as well as SIRVA injuries.  Assuming HHS’ proposed revisions are adopted, these two “defacto” Table injuries will be upgraded to full Table injuries.

   The proposed additions to the Table follow extensive years-long work by the Institute of Medicine (IOM) of the National Academy of Sciences which is historically charged with reviewing medical studies with an eye to making periodic revisions to the Table.

   In addition to proposing that GBS and SIRVA become listed injuries, the IOM recommended rejecting the following vaccine-related injuries as unsupported by scientific evidence: MMR-related autism and type 1 diabetes; DTaP (tetanus)-related type 1 diabetes; inactivated flu-related Bell’s palsy and exacerbation of asthma or reactive airway disease episodes.

   As discussed in a previous issue of A Legal Moment, the VICP was instituted in the late 1980's to compensate individuals who can prove that they have been injured by a vaccine listed in the Table.  You can read more about the VICP generally and the proposed changes on HHS' website.

   By far the most prevalent claims brought under the VICP relate to the following eight vaccines:  Measles-mumps-rubella (MMR) vaccine, varicella virus vaccine, seasonal influenza vaccines, hepatitis A vaccine, hepatitis B vaccine, human papillomavirus (HPV) vaccine, diphtheria tetanus toxoid and acellular pertussis-containing (DTaP) vaccines, and meningococcal vaccine.                

  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.  Despite the fact that there are more than a million lawyers in the United States, there are very few that are qualified to prosecute vaccine injury cases.  A listing can be found on the Court of Claims' website.  Because this is a Federal program involving just the Court of Claims, moreover, it is not necessary to retain an attorney with a license to practice law in your home state (as is usually the case).


Other Recent Articles
Philip Roth is a founding shareholder at Marshall, Roth & Gregory, PC. One of the firm's principal litigators, Philip's practice includes prosecuting VICP claims before the Federal Court of 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).

Or visit our firm's website.

Other articles which may be of interest to you may be found in our Newsletter archives.

You may not rely on this content as legal advice for any specific situation, but should instead contact an attorney for specific advice.
Copyright © 2016 Marshall, Roth & Gregory, PC, All rights reserved.
Email Marketing Powered by MailChimp