When is compensation available following a vaccine-related injury?
Many parents have concerns about the number of vaccines given their infants and whether vaccines can cause injury. Forty years ago children received 5 vaccines in about 8 shots before the age of two. Today that number has increased to 11 vaccines and 20 shots by age two. In addition, the Centers for Disease Control estimate that approximately 40 percent of adults and about 50 percent of children receive a yearly flu vaccination.
What many people may not realize is that there is a federal program that compensates victims of any age who suffer vaccine-related injury or death.
A less adversarial system than civil tort claims
The Vaccine Injury Compensation Program was established as part of the National Childhood Vaccine Act of 1986. The act was in response to a large number of lawsuits filed against vaccine manufactures that threatened to cause shortages and reduced vaccination rates.
The program covers vaccines designed to prevent polio, hepatitis B, tetanus, measles, mumps, rubella, pertussis, Hemophilus influenzae type b, rotavirus, pneumonia and varicella. For someone to receive compensation, the injury must:
- last at least six months,
- cause a death related to the administration of the vaccine or
- have been serious enough to justify hospitalization.
A claim needs to be filed within 36 months or three years from the onset of the injury. In a case where a vaccination causes a death, the estate needs to file a petition within 24 months of the death.
How is a claim filed?
A person claiming a vaccine-related injury can file a claim with the U.S. Court of Federal Claims. Then a physician from the U.S. Department of Health and Human Services reviews the claim and makes a recommendation whether the claim meets program criteria.
There are two types of claims:
- Table claims and
- Causation-in-fact claims.
The burden is on the petition to prove causation by a preponderance of the evidence similar to medical malpractice claims. This standard requires enough evidence to show an injury was more likely than not caused by a vaccine.
Table claims are certain injuries known to occur within a designated period following a specific vaccine. For example, if an individual receives a vaccination for measles, mumps and rubella and within 15 days develops a residual seizure disorder, a presumption would then exist that the vaccine caused the injury.
On the other hand, causation-in-fact claims require the petitioner to prove through medical records and expert opinion that a vaccine caused an injury that does not appear on the table.
In one recent case, parents of an infant alleged that Pediarix, Prevnar, PedvaxHIB and RotaTeq caused their child to suffer epileptic seizures. The child was born premature and had suffered from a ‘metabolic disorder.’ A physician who reviewed the medical record concluded that the child’s “developmental regression with chronic encephalopathy following administration of a vaccine is consistent with vaccine induced encephalopathy.” A neurologist disagreed and cited a single genetic condition as the cause. The court dismissed the petition finding there was not enough evidence that the vaccine caused the injury. On appeal the decision was upheld.
This case demonstrates the complexity associated with these cases. Vaccines do not leave easy clues linking them to subsequent injuries. If you or a loved one suffered an injury soon after receiving a vaccination, contact a skilled medical malpractice attorney to discuss what occurred. Compensation through the VICP could be available to cover past and future medical expenses, as well as pain and suffering.