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).
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