7 Signs You Might Have a Vaccine-Injury Claim

Attorney Kristi SchubertLLF Attorney Kristi Schubert recently published her article, “7 Signs Your Client Has a Vaccine Injury,” in the Louisiana Association for Justice publication – Louisiana Advocates. This article was written for an attorney audience, but the information is valuable to all of us. LLF attorneys are admitted to the special Vaccine Court and are available to represent petitioners in vaccine injury claims.

    7 Signs Your Client May Have a Vaccine Injury Claim

The National Vaccine Injury Compensation Program (VICP)1 has distributed approximately 3 billion dollars in compensation since its inception in 1986, and currently has more than $2 billion available to compensate individuals who suffer vaccine-related injuries.2 The VICP has set forth in detail the specific vaccines which are covered, including vaccines for the seasonal flu, tetanus, Hepatitis A and B, measles, mumps, and rubella. In certain circumstances, an injury is actually presumed to have been caused by the vaccine. In order to spot a viable vaccine injury claim, you need to know exactly what you are looking for. Below are some indicators to look for in determining whether an individual has a viable vaccine injury claim.3

1. Anaphylactic shock within 4 hours of receipt of certain vaccines.

Some vaccines carry with them a small risk that the patient will experience anaphylaxis, or go into anaphylactic shock, which may result in death. If this occurs within 4 hours of receiving the below listed vaccines, and other relevant conditions are met, the injury will be presumed to have been caused by the vaccine. The relevant vaccines include those for flu, tetanus, pertussis, polio, Hepatitis B, meningitis, HPV, varicella, measles, mumps, rubella.

2. Seizure within 72 hours of receiving the pertussis vaccine.

If your client had a seizure within 72 hours of receiving the pertussis vaccine (e.g., DTP, DTaP, P, DTP-Hib), she may be suffering from encephalopathy or encephalitis. These conditions are presumed to be caused by the pertussis vaccine if specified symptoms appear within 72 hours of receipt of the vaccine. These symptoms include seizures and a significantly decreased level of consciousness, such as a confused mental state, delirium, or psychosis, that lasts 24 hours or longer.

3. Prolonged shoulder problems within 48 hours of receiving certain vaccines.

Vaccines can also cause a variety of shoulder issues, such as bursitis, tendinitis, rotator cuff tears or adhesive capsulitis, also known as frozen shoulder. If following receipt of the vaccine, an individual experiences prolonged pain, stiffness, diminished strength, or a reduced range of motion she could have Shoulder Injury Related to Vaccine Administration (SIRVA). The relevant vaccines include flu, tetanus, pertussis, polio, Hepatitis A or B, meningitis, HPV, varicella, measles, mumps, rubella, pneumonia.

4. Unexplained weakness or other neurological symptoms within 42 days after receiving the seasonal Influenza vaccine.

If an individual begins to experience unexplained neurological symptoms or is diagnosed with an autoimmune disorder, such as Guillain-Barré Syndrome (GBS), her symptoms may have been caused by the receipt of the vaccine. Symptoms of GBS can include muscle pain or weakness, numbness and/or tingling sensations in the extremities (which generally begin at the feet and progress upward), difficulty walking or standing for long periods, or difficulty speaking or breathing. When the symptoms develop within 42 days of receiving the seasonal influenza vaccine, and certain other conditions are met, the injury will be presumed to have been caused by receipt of the vaccine.

5. Persistent joint swelling within 42 days of receiving the rubella vaccine.

If an individual does not have a history of arthritis but develops joint swelling within 42 days after receiving the rubella vaccine, he could have chronic arthritis caused by a vaccine. When the arthritis lasts for at least 6 months, and is coupled with several other symptoms, such as warmth, tenderness, pain with movement, or limited range of motion, it will often be presumed to have been caused by the receipt of the rubella vaccine.

6. Weakness and/or aching in arm within 28 days of receiving the Tetanus vaccine.

If an individual develops a deep, steady, severe aching pain her shoulder or upper arm, she could have brachial neuritis caused by a vaccine. This pain, which may affect one or both of the arms, is typically followed by weakness in the affected upper extremity muscle groups. When this condition develops within the relevant time period, and certain other conditions are met, it will be presumed to have been caused by the receipt of the tetanus vaccine.

7. Seizure within 15 days of receiving the measles, mumps, or rubella vaccine.

Encephalopathy or encephalitis is presumed to be caused by the measles, mumps, or rubella vaccine (e.g., DTP, DTaP, P, DTP-Hib), if certain symptoms appear within 15 days of receipt of the vaccine. These symptoms include seizures and a significantly decreased level of consciousness, such as a confused mental state, delirium, or psychosis, that lasts 24 hours or longer.

If you do discover a viable vaccine injury claim, suit cannot be filed in regular state or federal court. Suit must be filed in the United States Court of Federal Claims and heard by the special court established within the U.S. Court of Federal Claims, commonly referred to as the “Vaccine Court.” It will then be adjudicated by one of the 8 Special Masters who adjudicate all vaccine injury claims. The rules and proceedings in vaccine court differ enormously from the rules used in regular state and federal courts. Should you choose to refer the case to another attorney, the VICP Office of Special Masters maintains a list on their website of attorneys admitted to the court and available to represent petitioners in vaccine injury claims.4

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1 A no-fault system for litigating vaccine injury claims.

2 Plaintiffs with vaccine injuries are compensated for medical and legal expenses, loss of future earning capacity, and up to $250,000 for pain and suffering and when applicable, a death benefit of up to $250,000 is available.

3 Diphtheria, tetanus, pertussis (DTP, DTaP, Tdap, DT, Td, or TT); Haemphilus influenzae type b (Hib); Hepatitis A (HAV); Hepatitis B (HBV); Human papillomavirus (HPV); Influenza (TIV, LAIV); Measles, mumps, rubella (MMR, MR, M, R); Meningococcal (MCV4, MPSV4, MenB-FHbp, MenB-4C); Polio (OPV or IPV); Pneumococcal conjugate (PCV);Rotavirus (RV);Varicella (VZV)

4 https://www.uscfc.uscourts.gov/sites/default/files/Updated%20Vaccine%20Attorney%20List%205.1.2018.pdf

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