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 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.
Congress in 1986 passed the National Childhood Vaccine Injury Act (“the Act”) and established the National Vaccine Injury Compensation Program. 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 supported. However, the Act takes the position that protections are needed for the vaccine manufacturers of these vaccines to prevent manufacturers from leaving the market resulting in vaccine shortages and reduction of U.S. vaccination rates, in fear of a resurgence of vaccine preventable diseases. Despite abundant science published in mainstream medical and scientific journals suggesting cause for concern about safety of vaccines, our government has decided – right or wrong – that it is okay for a few to be sacrificed for the greater good of the country. Congress passed the Act with the position that by doing so, Congress was recognizing 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 of vaccine-related injuries. An injured party or his/her representative as a result of the Act can no longer sue the manufacturer of the vaccine. The vaccine injured and his/her family must now bring a claim requesting financial support through the National Vaccine Injury Compensation Program (“VICP”) against the federal government – specifically the Secretary of Health and Human Services – before a special court established within the U.S. Court of Federal Claims, commonly referred to as the “Vaccine Court.” All vaccine claims 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 statute of limitations requires that a claim be filed with the Vaccine Court within 3 years from the onset of the first symptoms. If the event of a vaccine-related death a claim must be filed no later than 2 years from the date of the death.
Litigation in Vaccine Court begins with the filing of a petition that sets forth the vaccine-related injury. And, 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 program still takes more than a year, and often several years, to get through the process. The case will be bifurcated. The initial phase is devoted to determining whether the vaccine injured and his/her family is entitled to compensation. This will include the exchange of expert reports, a non-jury hearing before a Judge (the Special Master) very akin to a trial with expert and fact witness testimony as well as direct and cross-examination by attorneys for the injured and the federal government along with additional questing of the witnesses by the Special Master.
REQUIREMENTS TO RECEIVE COMPENSATION THROUGH THE VICP
In order to receive compensation from the VICP, the plaintiff must show the following:
- He/she received a vaccine covered by the Act or contracted polio from a recipient of an oral polio vaccine;
- He/she is a U.S. citizen or a dependent of a U.S. citizen;
- He/she sustained a vaccine-related injury as defined by regulation or caused by the vaccine. [Note: The preponderance of evidence standard under the Vaccine Act requires proof that a vaccine more likely than not caused the injury, that but for her vaccination she would not have been injured, and that the vaccination was a substantial factor in bringing about her injury. Causation is determined on a case-by-case basis.]
- He/she either died as a result of the vaccine-related injury or suffered complications of such an injury for more than six months; and
- He/she incurred unreimbursed medical expenses of more than $1,000 related to the injury and has not previously received an award or settlement for a related civil action.
The Special Master then may take several months to issue a written decision on the issue of whether the vaccine injured and his/her family is entitled to financial support. If there is a ruling in favor of the injured then the second phase will focus on assessing damages, again requiring an expert opinion setting forth a life care plan for the injured individual. This process is far from “swift.” Financial support allowed under the VICP is limited to:
- Medical Expenses (Past and Future)
- Pain and Suffering (Past and Future) – Maximum recovery $250,000.00
- Lost Wages (Past and Future)
- Death cases – Maximum Recovery $250,000.00
The Vaccine Court has awarded billions of dollars to vaccine victims for their catastrophic vaccine injuries.
However, two out of three applicants are denied compensation.
The VICP pays reasonable attorneys’ fees and costs separately from any compensation award.
At the conclusion of a case, the attorney can seek reimbursement of litigation costs
and attorney’s fees from the Vaccine Court.
The law does preserve the right for vaccine injured persons to bring a lawsuit in the court system
if federal compensation is denied or is not sufficient.
If you or a loved one has been seriously injured by a vaccine, contact Lamothe Law Firm to speak with an experienced, licensed vaccine attorney– (504) 704-1414.Send A Message
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