Vaccine Injury Lawyer

The National Vaccine Injury Compensation Program (VICP) is a special federal program that provides no-fault compensation to individuals that are injured by a vaccine. The VICP is often referred to as Vaccine Court and it offers people who are harmed by a vaccination an alternative compensation system outside of a traditional civil lawsuit.

Vaccine court and the VICP process are completely unfamiliar to most people and even most lawyers. In this post, we will explain the basics of vaccine court and getting compensation under the VICP.

UPDATES:

April 2024: The U.S. Court of Appeals for the Federal Circuit has thankfully corrected a lower court’s misapplication of the criteria required for petitioners to receive compensation under the National Childhood Vaccine Injury Act.

Yesterday, a panel of three judges overturned a previous ruling that had denied compensation to Victoria and Kevin Leming for injuries their daughter, A.L., sustained after receiving multiple childhood vaccines in 2016.

At the age of 15 months, A.L. developed immune thrombocytopenic purpura, a condition causing severe bruising and bleeding, following her vaccinations for diphtheria-tetanus-pertussis, influenza type B, and measles, mumps, and rubella. Her condition led to a two-week hospitalization and a bone marrow aspiration and biopsy procedure after initial treatments failed.

The government argued that the bone marrow aspiration and biopsy conducted during her hospitalization did not fulfill the “surgical intervention” criterion because it was diagnostic rather than therapeutic. The Court of Federal Claims agreed the bone marrow aspiration and biopsy A.L. underwent were merely diagnostic and did not meet the “surgical intervention” requirement necessary for compensation. The problem was that the Vaccine Act did not specifically define “surgical intervention”. So they referred to the ordinary meaning of the term as understood when the statute was enacted.

It is hard for judges when statutory terms are not defined. Still, that definition in this case makes no sense, and the Appeals Court agreed. It clarified that the term “surgical intervention,” as used in the Vaccine Act, encompasses any surgical measure taken either for diagnostic or therapeutic purposes to improve the health of a patient or to prevent harm, regardless of whether it directly treats the vaccine injury. This broader interpretation aims to ensure that individuals who suffer significant procedures due to vaccine-related injuries are eligible for compensation. The case was remanded for further proceedings with this new interpretation in mind.

December 2023: The grandparents of an 8-year-old girl, who became paraplegic due to transverse myelitis following childhood vaccinations filed the claim under the Vaccine Injury Compensation Act at the U.S. Court of Federal Claims. The child was born in Germany to a military family and received vaccinations in Fort Riley, Kansas, at six months old. Within 19 days of receiving DTaP, Hepatitis B, pneumonia, and Hib vaccines, she exhibited severe mobility issues. Diagnosed with transverse myelitis in October 2015, she now requires lifelong medical care. The family reached a $4 million settlement with the U.S. government.

Vaccine Court and the Vaccine Injury Compensation System

Vaccinations are a modern marvel that literally saves lives. Just a few generations ago, millions of people died each year from diseases such as smallpox and measles. The advent of modern vaccinations changed this so dramatically that these diseases have essentially been eradicated. Governments across the world recognize the importance of vaccinations to our modern standard of living and take measures to encourage, require and protect them in various ways.

Vaccines are generally very safe and cause no harm to the majority of people who receive them. However, in some cases, vaccinations can cause adverse reactions resulting in serious physical injuries. Individuals who are injured by adverse reactions to a vaccine have the right to file a product liability lawsuit against the manufacturer and seek compensation.

In the 1980s, a growing wave of vaccine lawsuits started putting intense financial strain on the pharmaceutical companies that develop and manufacture vaccines. This flood of vaccine litigation was fueled by allegations that the DTP vaccine (diphtheria-tetanus-pertussis) was causing children to suffer permanent brain injuries.

The threat of litigation prompted many manufacturers to stop making the DPT vaccines resulting in an acute supply shortage. There were concerns that this would expand beyond DPT to other vaccines. In response, Congress passed the National Childhood Vaccine Injury Act of 1986.

This new law created the National Vaccine Injury Compensation Program (NVICP) and had two primary objectives:

Reduce the Burden of Vaccine Litigation: the NVICP sought to alleviate the heavy burden of litigation on both vaccine manufacturers and the courts by requiring all vaccine injury claims to be filed in “vaccine court.”
Streamline the Compensation Process: the other major goal of the NVICP was to make it easier and more efficient to get compensation for valid injuries caused by vaccines.

How Does a Vaccine Court Case Work?

Under the NVICP, anyone seeking financial compensation for injuries related to a vaccine is required to file a claim for compensation in what is known as vaccine court. Vaccine court is a special division within the U.S. Court of Federal Claims that handles vaccine injury claims under the NVICP. Here is a simple overview of how the vaccine court claim process works:

A claimant (or their attorney) files a petition for compensation with the U.S. Court of Claims setting forth the facts of the alleged vaccine-related injury.
Medical staff at the U.S. Department of Health and Human Services (HHS) examines the petition and makes an initial determination as to whether the allegations stated in the petition meet the scientific criteria for compensation under the NVICP. This determination is set forth in a written recommendation report.
A lawyer at the U.S. Department of Justice develops a legal analysis report based on the medical recommendation and submits this report to the Court.
The Court appoints a special master to review the case, including the legal report and medical recommendation. The special master then makes a final decision on whether the claimant is entitled to compensation and, if so, how much compensation should be awarded.
If the special master decides to award compensation, the claimant must decide whether to accept or reject the decision.
If the decision is accepted, the Court directs HHS to pay the compensation to the claimant. The Court will also order HHS to pay the claimant’s attorneys’ fees. Attorneys’ fees are usually paid by HHS even if the claim is not successful and no compensation is awarded.

If the claimant chooses not to accept the decision of the special master, they can appeal the decision and have the case decided by the Court. Claimants can also choose to opt-out of the vaccine court process before a final decision is issued and bring their case in civil court instead.

What Proof is Required for a Vaccine Court Claim?

In order to be legally entitled to financial compensation under the NVICP for injuries allegedly caused by a vaccine, vaccine court claimants basically need to prove that their case fits into one of the recognized vaccine injuries identified on the official Vaccine Injury Table (VIT).

The VIT lists 17 different types of covered vaccines. For each of those 17 different vaccines, the VIT identifies 1-4 injuries or conditions that are known to be caused by that vaccine. Finally, the VIT identifies the recognized time frame after vaccination that each of the covered injuries or conditions is known to occur within (e.g., 48 hours, 20 days, etc.).

A vaccine court claimant will be presumptively entitled to compensation if they can show that:

The injured person received one of the 17 different types of vaccinations listed in column 1 of the VIT.
The injured person suffered an “illness, disability, injury, or condition” listed in column 2 of the VIT for their specific vaccine type.
The injured person experienced the first symptom of their injury/condition within the applicable time frame listed in column 3 of the VIT.

If the alleged injury is not listed on the VIT or did not occur within the time period set forth in the VIT, the claimant can still be entitled to compensation if they can otherwise prove that their injury was caused by the vaccine. Establishing causation outside of the VIT will require additional proof such as medical records and possibly expert witness testimony.

Proving Causation in Vaccine Injury Cases

For cases that fit neatly within one of the categories listed in the Vaccine Injury Table, the injury or condition will be presumed to be related to the vaccine without further proof. For vaccine court cases that do not fit the VIT criteria, however, claimants have the burden of proving causation.

The burden of proof for vaccine court claims is “preponderance of the evidence,” which is the same standard applied in civil cases. This essentially requires claimants to prove that it was “more likely than not” (i.e., 51% or greater probability) that their injury was related to the vaccine.

Meeting this evidentiary standard usually requires the claimant to show 3 things:

A plausible scientific theory of how the vaccine caused the injury.
A logical sequence of events connecting the vaccine and the injury.
The injury occurred within the appropriate time frame following the vaccine.

To prove causation in a vaccine court case, claimants will need to obtain a full medical history. This will include comprehensive medical records for both before and after the vaccine.

Vaccine Court Compensation Payouts

Financial compensation in a vaccine court is very similar to the type of compensation available in a civil lawsuit. The types of damages available in vaccine court claims involving injury include:

Medical Expenses: vaccine court claimants can be awarded reasonable compensation for past and future medical expenses (e.g., treatment, hospital care, rehabilitation, medication, etc.) that are incurred as a result of the vaccine injury or condition. There is no maximum limit on the amount of medical expense compensation in a vaccine court claim. However, compensation is not awarded for medical expenses that are covered by insurance.
Lost Income: compensation can be awarded in vaccine court for lost income or lost wages incurred as a result of the vaccine injury.
Pain & Suffering (Max = $250,000): vaccine court claimants can be awarded compensation for pain and mental suffering associated with their vaccine-related injury.
Attorneys Fees & Legal Costs: if the claim is made in “good faith” compensation can be awarded for reasonable attorneys’ fees and costs, even if the claim is not successful.

For vaccine court cases involving death, the decedent’s estate can be awarded a maximum death benefit of $250,000. Claimants in death cases are also entitled to attorneys’ fees and costs if the claim in made in good faith.

The main difference between compensation awards in vaccine court vs. civil court is that the maximum amount of compensation a claimant can get in vaccine court is lower. This is primarily because pain & suffering damages in vaccine court are capped at $250,000, whereas in civil court there usually is no cap.

Do You Need a Lawyer for a Vaccine Court Claim?

The vaccine court claim process is very complex and difficult to navigate so almost all claimants are represented by an attorney. Hiring a vaccine court attorney to handle your cases usually won’t cost you anything because the VICP will pay for reasonable attorneys’ fees and costs. As long as the claim is brought in good faith, attorneys’ fees will be covered even if you lose your vaccine court claim.

What is the Deadline to File a Vaccine Court Claim?

Vaccine court claims involving injury or an adverse health condition must be filed within 3 years after the date of your first vaccine injury symptoms. For example, let’s say Jane gets a seasonal influenza vaccine on January 1, 2020. On January 6, Jane starts to experience weakness in her legs and a pins and needles sensation. A week later, on January 14, Jane starts to experience double vision and difficulty moving her face. On February 15, Jane is diagnosed with Guillain-Barre syndrome (“GBS”). Two years later, in March 2022, Jane learns that her GBS may have been caused by the flu shot.

Jane has until Janu 6, 2023 to file a vaccine court claim because her 3-year deadline began running on the date of her first symptoms (which occurred on January 6). This deadline would apply even if Jane does not learn that the GBS may have been caused by the flu shot until several years later, after the 3-year limitation period.

For vaccine court claims involving wrongful death, the deadline is 2 years from the date of death or 4 years from the date of the first symptom related to the vaccine injury. When a new vaccine or new injury is added to the Vaccine Injury Table, pre-existing claims for that vaccine or injury must be filed within 2-years.

What are Common Vaccine Injury Symptoms?

The Vaccine Injury Table contains a list of symptoms that are known to be related to certain types of vaccine injuries caused by specific vaccines. Some of most common vaccine injury symptoms listed on the current Vaccine Injury Table include:

Anaphylaxis: a life-threatening allergic reaction in which the body’s immune system releases a massive wave of chemicals that cause the body to go into shock triggering a sudden drop in blood pressure and difficulty breathing.

Vasovagal Syncope: fainting caused when the body overreacts to external triggers causing the heart rate and blood pressure to drop suddenly.

Encephalopathy: a general umbrella term meaning damage to the brain, it is listed as a presumptive injury related to measles/mumps/rubella vaccines (MMR).

Guillain-Barre Syndrome: a rare condition in which the body’s immune system attacks its own nervous system causing weaking and tingling that can spread to paralysis of the whole body.

Contact the Vaccine Injury Lawyers at Miller & Zois

The product liability lawyers at Miller & Zois represent victims of vaccine injuries and can help bring your claim for compensation under the VICP in vaccine court. If you have been injured by a reaction to a vaccine, contact our office today at 800-553-8082 for a free consultation.