CAN I SUE FOR A VACCINE INJURY?

When vaccines were first being widely used in the 19th century, if you suffered severe negative side effects after a vaccination, you had little or no recourse. Beginning with the passage of the U.S. Biologics Control Act of 1902, which was the first government regulation of vaccines, those vaccines started becoming much safer. Still, even in the 21st century, no medical procedure, including vaccination, is ever entirely without risk. There’s no doubt that vaccines save lives, but there’s also no doubt that some vaccines, when received by certain individuals, can also cause serious side effects, severe injuries, and worse. The most common side effects of vaccinations are temporary soreness and swelling at the puncture location, but some vaccines have been linked to rashes, fevers, muscles aches, and a number of other symptoms. Serious side effects from vaccinations are statistically rare but may include seizures, allergic reactions, and in the most extreme cases, fatalities.

What happens if a vaccination goes wrong and you or your child becomes seriously ill or injured as a result? What is your legal recourse after a vaccine injury? Can you obtain any compensation for your additional medical bills and related expenses if you or someone you love is injured by a vaccine? The answer is “probably,” but it can be an extremely complicated challenge. Acquiring reimbursement for a vaccine-related injury is an entirely different procedure from the way you would normally seek compensation for a personal injury or a medical malpractice claim.

THE “VACCINE COURT”

Since the 1980s, vaccine-related injury claims in the United States have been heard only by the U.S. Court of Federal Claims in Washington, D.C. “Vaccine Court” is the popular term for the Office of Special Masters of the Court of Federal Claims. Claims against vaccine manufacturers may not normally be filed in state or federal civil courts but may only be heard in the Court of Claims. The National Vaccine Injury Compensation Program (VICP) was established by Congress as part of the 1986 National Childhood Vaccine Injury Act to award compensation to the victims of vaccine injuries. The VICP is a federal no-fault insurance program that functions as an alternative to the traditional civil personal injury system, and it provides compensation to victims who have been injured by certain vaccines.

If you or someone in your family has been injured because of a vaccine – or is injured because of a vaccine in the future – consult as quickly as possible with an experienced personal injury or medical malpractice lawyer, and in the New York City area, consult with an experienced Bronx vaccine injury attorney. You cannot file a vaccine injury lawsuit in a state court. Because you must file the claim through the VICP, you’ll need the help of a personal injury lawyer with experience in vaccine injury cases and familiarity with the Court of Federal Claims. It can be a challenge to win the compensation you need and the justice you deserve in the Court of Federal Claims, but if you’ve been injured by a vaccine, it can often be accomplished with the right attorney’s help.

The federal “Vaccine Court” operates on a “no fault” system, so to win compensation for a vaccine-related injury, you are not required to prove that anyone was “at fault.” You do, however, have to establish that your injury was caused by the vaccine under a “more likely than not” standard. You have three years to file a claim for a vaccine injury from the date that you first discover your symptoms, but do not wait three years. The sooner you act after you know that your injury is vaccine-related, the better. Putting an attorney to work for you as soon as you know that you’ve been injured gives that attorney time to examine your claim, gather evidence, and speak with potential witnesses on your behalf. For a vaccine-related wrongful death, the claim must be filed within two years of the date of the death and within four years after the onset date of the first symptoms.

It is frankly almost impossible to sidestep the VICP and the Court of Federal Claims if you are a victim who is seeking compensation for a vaccine-related injury. State civil courts and other federal courts simply will not hear vaccine injury claims, although if your claim is rejected by the Court of Federal Claims, you should certainly speak with your attorney about an appeal to a state or federal civil court.

VICP COVERAGE

Why is there a special, separate system for vaccine injury cases outside of the established civil court system? In the 1970s and the early 1980s, lawsuits filed against vaccine manufacturers increased dramatically, and those manufacturers made several huge payouts to those claiming vaccine injuries – so huge, in fact, that a number of pharmaceutical corporations reacted by abandoning the vaccine business entirely, thus placing the general public’s health and well-being potentially at risk. In October, 1986, Congress responded by passing the National Childhood Vaccine Injury Act, which established the VICP.

Since 1988, the VICP has been funded by a 75-cent excise tax on every purchased dose of the vaccines covered by the program. Injuries caused by the vaccines listed here are covered by the VICP: Hepatitis A, Hepatitis B, HPV, chicken pox, diphtheria, influenza, measles, mumps, meningococcal disease, pertussis, polio, pneumococcal conjugate, rotavirus, rubella, tetanus, and whooping cough. The VICP does not cover all vaccines; however, the vaccines routinely given to children as part of the recommended immunization schedule are on the list, and many vaccines for adults are also covered. You may file a vaccine injury claim through the VCIP if:

• You believe that you were injured by one of the vaccines covered by the VICP.
• You are a parent or legal guardian of a minor child or a disabled adult and you believe that the minor child or disabled adult was injured by a vaccine covered by the VICP.
• You are the legal representative of the estate of a deceased person and you believe that the person’s death was the result of a vaccine covered by the VICP.

INJURIES AND AWARDS

Vaccines have been linked to a number of medical conditions including but not limited to serious allergic reactions, encephalopathy, Guillain-Barre Syndrome, brachial neuritis, intussusception, and paralytic polio. If you are the victim of a vaccine injury, you are entitled in the Court of Federal Claims to seek full reimbursement for your medical bills, your legal expenses, related expenditures, loss of future earnings, and for your pain and suffering as well. Pain and suffering awards are capped in “Vaccine Court” at $250,000. You may also seek up to $250,000 for a wrongful death if you are a survivor. VICP compensation payments averaged $782,136 per successful claim through 2011. As of December 1, 2011, the program had awarded $2.35 billion in 2,810 separate vaccine injury cases, including compensation for 390 wrongful deaths linked to vaccine injuries.

Although you do not have to name a defendant or prove fault in “Vaccine Court,” as a victim you nevertheless must show, by a preponderance of the evidence, that without the vaccination, no injury would have been sustained. A mere temporal relationship between the vaccination and the injury – you were vaccinated, and then you were injured – is not sufficient; a claimant must present some kind of medical evidence and a theory of causation supported by the medical records and/or by expert medical opinion.

THE AUTISM QUESTION

Beginning around 2001, hundreds and then thousands of families began to petition the VICP, claiming that their children’s autism was the result of vaccinations. To deal with the overwhelming number of these claims, and to address the charge that a causal relationship existed between vaccination and autism, the VICP in 2002 established a program called the Omnibus Autism Proceeding. The OAP consolidated many of the autism claims into test cases that rested on different theories of causation, but no causal relationship was found between autism and any vaccine, and appeals of the test cases have been unsuccessful. New claimants will have to offer new evidence or a new theory of autism causation by vaccines or pursue other legal options.

TAKING ACTION

If you or someone you love has sustained an injury as the result of a vaccination, consult a personal injury lawyer at once, and in New York, speak to an experienced Bronx personal injury attorney. Filing a claim with the Court of Federal Claims requires a $400 filing fee, but that fee can be waived for those in a financial hardship situation. Before filing a claim, you’ll also want to compile medical records such as prenatal, birth, pre-vaccination, vaccination, and post-vaccination records. Without those records, your claim may be delayed or rejected.

All legal fees for the representation of vaccine injury victims in the “Vaccine Court” are paid by the VICP itself. Attorneys are eligible for reasonable attorneys’ fees, whether or not the claimant is receives reimbursement, if specified minimum requirements are met. It can take as long as two years – and sometimes longer – to resolve claims in “Vaccine Court,” so if you or your child has been injured by a vaccine, make the call to a personal injury attorney – with vaccine injury experience – as quickly as possible.