Vaccine Litigation and the National Vaccine Injury Compensation Program

Vaccine Litigation and the National Vaccine Injury Compensation Program

Most persons who receive vaccinations have no problems or adverse reactions. Vaccinations are a vital and important part of the health care system, and have been instrumental in eradicating many diseases. In some cases, even though rare, a vaccine can cause a serious adverse reaction and health issue. For those who believe they, or their children, have been injured by the administration of a childhood vaccination, there is an alternative to costly and time consuming product liability litigation against the vaccine manufacturer or a negligence claim against the medical provider who administered the vaccination.

In the 1980’s, there was an influx of lawsuits against vaccine companies and medical care providers arising out of negative reactions to vaccinations. This frightened vaccine manufacturers and threatened a resurgence of preventable diseases due to companies not producing vaccines and a commensurate decrease in vaccination rates. Congress therefore enacted the National Childhood Vaccine Injury Act of 1986. The Act established the National Vaccine Injury Compensation Program (hereinafter “VICP”), an alternative to a product liability action or a negligence claim against a medical provider. The VICP provides a streamlined system for compensation in those rare situations where a person is injured by a vaccine, a system which is different, quicker, and less adversarial than the usual course of a civil tort claim in state or federal court. The VICP established a government trust fund to compensate injured persons, financed by an excise tax on vaccines.

Here is the process. A person (which can be an adult, despite the name of the act) who believes they have suffered a vaccine injury files a petition, with supporting medical records and documentation, against the Secretary of the Department of Health and Human Services (“HHS”) in the United States Court of Federal Claims in Washington, D.C., seeking compensation from the trust fund. Attorneys from the Civil Division of the U.S. Department of justice, in conjunction with medical professionals with HHS, review the petition. HHS makes a preliminary recommendation regarding whether the petition satisfies the medical criteria for compensation. Attorneys from the Department of justice review the medical findings and prepare a report, which is submitted not to a judge, but to a Special Master at the Court. The Special Master reviews the report and holds a hearing wherein evidence is presented by both sides. There is no jury. A decision is then rendered as to whether the petitioner is entitled to compensation, and in what amount. If compensation is awarded, the Special Master directs HHS to pay the petitioner. Also, a settlement can be reached between the petitioner and the government without the necessity of a hearing at any time after the filing of a petition.

The petitioner is free to accept the Special Master’s award and end the case at that point. The Petitioner may also appeal the denial of compensation or the amount of the award. Furthermore, if the decision of the Special Master is rejected by the petitioner, a tort claim may then be filed in civil court against the vaccine manufacturer and/or the medical provider who administered the vaccination. Again, that is a long, expensive, and difficult process, and such claims have greatly decreased since the institution of VICP.

Vaccines covered by the Act include diptheria, tetanus, pertussis, measles, mumps, rubella, polio, hepatitis, chickenpox (varicella), flu, and human papillomavirus.