Vaccine injury claims can be complicated! Here are some of the questions we get most often.
The National Childhood Vaccine Injury Act of 1986 created the National Vaccine Injury Compensation Program (VICP), a no-fault alternative to the traditional tort system. The VICP was established with the intent of providing compensation to those injured by vaccines while simultaneously protecting healthcare providers and pharmaceutical companies from having to defend hundreds of lawsuits throughout the United States. It was intended to help prevent vaccine shortages which were expected to occur in the absence of the National Childhood Vaccine Injury Act. As part of the National Childhood Vaccine Injury Act, the pharmaceutical companies agreed to assess a tax on each vaccine sold. That tax would be used to create a fund in Washington, DC from which individuals who have experienced an adverse reaction to a vaccine can seek compensation for their injuries. Each claim is handled by the Federal Court of Claims in Washington, DC. The program has been accepting claims since 1988.
If your claim is approved by the Federal Court of Claims, you will be entitled to compensation for such things as your past and future medical treatment, past and future wage loss, out-of-pocket expenses, and past and future pain and suffering. The amount you receive varies depending on the extent and severity of your symptoms, as well as how long they last.
To receive compensation, you must go through the process of presenting a vaccine claim by which demonstrate you had an adverse reaction to a vaccine and suffered damages. Presenting your claim is done by filing a petition in the Federal Court of Claims in Washington, DC and presenting all evidence demonstrating you suffered an adverse reaction to a vaccine. You will need to present pre- and post-vaccination medical records that demonstrate the vaccination caused your symptoms.
After you file a petition and other documents supporting your claim, a representative from the Department of Health and Human Services will review the materials submitted to determine whether the evidence proves your claim and demonstrate you are entitled to compensation. At that time, the representative will then make a recommendation as to whether or not compensation is warranted.
The representative will set forth his/her recommendation and the reasons behind the recommendation in a report (known as a “4(c) Report”) that includes an analysis of the evidence in the case. That report will be submitted to the Court when completed. Based on whether compensation is recommended by the representative, the claimant (known as a “petitioner”) will be given an opportunity to supplement the record to address any issues brought up in the 4(c) Report to help bolster the petitioner’s claim. After all of the evidence has been submitted, the Court will decide whether an evidentiary hearing should be held to allow the parties to provide testimony and present evidence in support of their positions on the case. Ultimately, the court will look at all of the available evidence and make a decision as to whether to award compensation. If compensation is awarded, the amount and type of compensation will be determined at a later time.
During the entire process, counsel for the petitioner can try to negotiate a settlement to the claim. Whether compensation is deemed required by the court or negotiated between the parties via a settlement, your attorney will work with you to present all evidence available of the damages you sustained as a result of your adverse reaction to a vaccine.
Any type of injury can be compensated as long as it meets the Federal Court of Claim’s criteria. One important criterion is that the symptoms last six months or longer following the vaccination. Regardless of the severity of the symptoms, if the symptoms resolve in the individual returns to their prevaccination health within six months of receiving the vaccination, no compensation will be awarded.
As long as the adverse reaction symptoms last longer than six months, they can serve as a basis for compensation under the program. Some types of adverse reactions to vaccines occur frequently enough that there is a presumption that the vaccine caused the reaction the injured person. Such claims are called “on table” claims under the national vaccine act. For “on table” claims, the Court created a Vaccine Injury Table which lists the circumstances under which a given set of symptoms is to be presumed to be caused by the vaccination. For such “on table” claims, compensation is to be awarded unless the opposing counsel can demonstrate something other than the vaccine actually caused the symptoms and elements petitioner experienced following vaccination. Since there is a presumption that the vaccine caused any “on table” injuries, “on table” claims are processed relatively quickly, and compensation is very frequently provided.
Regrettably, the vast majority of vaccine -related injuries are not considered “on table” claims. Instead, if the symptoms do not match those that are listed on the Vaccine Injury Table, the claim is considered to be an “off table” injury. “Off table” claims require substantially more evidence than “on table” claims to obtain compensation for the injured party. Under such circumstances, treating physician and/or outside expert testimony explaining exactly how the vaccine caused the symptoms is typically required. These claims take longer to process because there is not a presumption that the vaccination caused the symptoms. They are also substantially less likely to result in compensation for the injured party without the assistance of an experienced and knowledgeable attorney.
Some of the most common adverse reactions to vaccines include pain, swelling, and redness at the injection site, as well as fever, irritability, drowsiness, and rash. These less severe symptoms typically resolve earlier than six months following the vaccination and, therefore, will not result in compensation. Some more severe reactions include seizures, pneumonia, Gullain-Barre Syndrome, deafness, permanent brain damage, and death. The more severe adverse reactions to vaccines are likely to last six months or longer, and are therefore more likely to result in compensation.
Under the program, however, just because symptoms arise shortly after the administration of vaccination does not mean the person will receive compensation. As the court often says in their opinions: “temporal proximity does not equal causation”. The supporting opinion of a medical professional is typically required for compensation to be provided. This is especially true for “off table” injuries. If a treating physician believes the vaccination caused the adverse reaction, that will carry a lot of weight with the court. Unfortunately, however, treating physicians are sometimes reluctant to get involved in these matters or to express an opinion that a vaccination caused injury to one of their patients. Under such circumstances, and outside expert must be retained to review the client’s medical records and provide an opinion as to whether or not the vaccination caused the adverse reaction the person experienced.
An experienced and dedicated attorney can help guide you through this process to help maximize your chances of presenting the evidence needed to ensure you receive the compensation you deserve.
One of the primary benefits of the National Vaccine Act is that attorney fees and associated costs are paid for by the fund, not the client. If expert testimony is required, typically their fees are advanced by the attorney representing you, who then obtains reimbursement from the Court after the claim is finalized.
The average time from filing a petition to completion of the claim is 2-3 years. However, the amount of time it takes to process a claim can vary significantly depending on the number of factors. Retaining an experienced attorney will help minimize the amount of time it takes to have your claim processed.
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