Lamothe Law Firm attorney, Michelle Cumberland, is one of the few licensed vaccine injury attorneys in New Orleans and in the nation. Here’s her most recent article, Vaccine Injury Compensation Program, that was recently published in the Louisiana Association for Justice publication, Louisiana Advocates.

 

                                                   

 

Vaccine Injury Compensation Program

Michelle P. Cumberland, Lamothe Law Firm, LLC

“How do you measure the life of one person against the greater good? Can it ever be the right thing to sacrifice an innocent person?”   –  Amy Engel

Every year, a small percentage of the population – adults as well as children – suffer adverse reactions to vaccinations which range from shoulder and arm pain to severe neurological conditions such as seizures and paralysis, and in some instances death. This is absolutely heartbreaking and devastating for those who think they are protecting their child or themselves by getting the recommended (and sometimes mandated) vaccine, to then instead find their perfectly healthy self or child injured, often permanently, due to an adverse reaction to that vaccine. The vaccine-injured and his/her family not only suffer the emotional distress and pain from the result of such an injury, but also incur large medical expenses, and often have to change their entire lives (i.e., housing, school, transportation, permanent care taker, etc.) to take care of a now disabled child or adult.

In 1986 Congress passed the National Childhood Vaccine Injury Act (“the Act”)i and established the National Vaccine Injury Compensation Program (“Vaccine Program”), a federal compensation program for persons injured by vaccines. The Act was passed as a response to a considerable amount of vaccine-related injuries and deaths that resulted in litigation in the early to mid-1980’s.

The Act acknowledges that vaccine injuries and deaths are real and that the vaccine-injured and their families should be financially compensated. However, the Act also takes the position that protections are needed for the manufacturers of these vaccines to prevent them from leaving the market, resulting in vaccine shortages and reduction of U.S. vaccination rates, from a fear of a resurgence of vaccine preventable diseases. Despite abundant science published in mainstream medical and scientific journals suggesting cause for concern about the safety of vaccines, our government has decided – right or wrong – that it is fine for a few to be sacrificed for the greater good of the country. Congress’s rationale recognizes society’s interest in ensuring that this country’s children are vaccinated.

In a nutshell, the purpose of the Act is to protect vaccine manufacturers from civil suits for claims arising from vaccine-related injuries. As a result of the Act, an injured party or his/her legal representative can no longer sue the manufacturer of the vaccine. A claim requesting financial compensation due to a vaccine-related injury must be brought through the Vaccine Program and filed against the federal government – specifically the Secretary of Health and Human Services. The validity of the claim and the amount of compensation warranted is determined by a special court established within the U.S. Court of Federal Claims, commonly referred to as the “Vaccine Court.” All claims of vaccine-related injuries are managed and adjudicated by the Congressionally created Office of Special Masters, which consists of eight special masters who are appointed to serve for four year terms. The Court, acting through the Special Masters, makes decisions as to the eligibility for, and the amount of, compensation.

A petitioner must file the claim of a vaccine-related injury with the Vaccine Court within three years from the onset of the first symptoms.ii In the event of a vaccine-related death, a claim must be filed within two years from the date of the death.iii

Cases before the Vaccine Court are bifurcated with the initial phase devoted to determining whether the vaccine injured and his/her family is entitled to compensation. If entitlement is determined, then the second phase to determine the amount of compensation will follow. There are very specific procedures and deadlines that must be followed throughout participation in the Vaccine Program that are set forth in the “Vaccine Rules of the United States Court of Federal Claims” (“Vaccine Rules”).iv Litigation begins with the filing of a petition against the Secretary of Health and Human Services that sets forth that a vaccine-related injury occurred, the type of vaccine received and how the identified vaccine caused or significantly aggravated an injury (causation-in-fact).v If the vaccine-related injury is one that has been recognized on the Vaccine Injury Table located at 42 C.F.R. § 100.3(a) then a decision regarding entitlement may be rendered without the involvement of experts and/or a causation hearing. However, more often than not, expert reports and a causation hearing will be necessary to determine entitlement. A causation hearing is a non-jury hearing before the Special Master very akin to a bench trial with expert and fact witness testimony, direct and cross-examination by attorneys for the parties and additional questioning of the witnesses by the Special Master.vi The Special Master ordinarily does not rule from the bench and may take several months to issue a written decision as to whether the injured (or his/her legal representative) is entitled to financial support.

If there is a ruling in favor of entitlement then the second phase will begin, focusing on assessing damages. Financial compensation allowed under the Vaccine Program generally falls into four categories: (1) pain and suffering, which is statutorily capped at $250,000;vii (2) lost wages;viii (3) past out-of-pocket medical expenses (those not reimbursable by insurance);ix and (4) actual future medical needs (those not reimbursable by any other source).x An expert opinion will likely be required, setting forth a life care plan for the injured individual. Damages are often negotiated between the parties with the assistance of status conferences with the Special Master. However, if deemed necessary, the Special Master can also schedule a hearing with expert and fact witness testimony, direct and cross-examination by attorneys and additional questioning of the witnesses by the Special Master.xi Since the enactment of the Act, the Vaccine Court has awarded billions of dollars to vaccine victims for their catastrophic vaccine injuries; although, two out of three applicants are denied compensation.

Congress provided in the Vaccine Program for reasonable attorneys’ fees and costs separate from any compensation award, regardless of whether a petitioner prevails. Under the Vaccine Program counsel may neither pursue nor accept funds from petitioner in addition to or in lieu of fees and costs awarded under the program.

While it may have been intended by Congress that the program “provide individuals a swift, flexible, and less adversarial alternative to the often costly and lengthy civil arena of traditional tort litigation,” the Vaccine Program still takes more than a year, and often several years, to get through before any compensation may be received.

i     42 U.S.C. §300aa-1 to 34 (2012).
ii    42 U.S.C. 300aa-16(a).
iii   Id.
iv   http://uscfc.uscourts.gov/sites/default/files/160801-Final-Version-of-Vaccine-Rules.pdf.
v    Vaccine Rule 2.
vi   Vaccine Rules 3 – 10.
vii  Vaccine Rule 15(a)(4).
viii Vaccine Rule 15(a)(3).
ix    Vaccine Rule 15(a)(1)(B).
x     Vaccine Rule 15(a)(1)(A).
xi    https://www.uscfc.uscourts.gov/vaccine-programoffice-special-masters.

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New Orleans, LA 70130

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