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The Vaccine Injury Compensation Program

Bird flu. Weve visited the subject before, both in this column and my radio show. Potentially evil wicked stuff. And with the recent reports of bird flu in Europe now among swans (no, not Johnny Weir), the possibility of its spread to human populations in the west has ratcheted up, at least a little bit.When we last visited things legal pertaining to the bird flu (more properly, Avian Influenza – H5N1), we considered certain Constitutional Issues (specifically, the possibility of martial law). Here, we consider what might happen if the bird flu perches in our midst and in willy-nilly immunization of the populace (presuming, of course, that if and when it hits, a vaccine has been developed), someone (or many someones), end up injured.Injured by a vaccine? you say. I thought vaccines were supposed to be the hand of God him/her-self, leveling the playing field of dread disease. Well, yes, of course. But in every immunization program, certain persons dont react the way the rest of us do and in the roulette of vaccine administration, it is a given that a certain percentage of folks will fall ill (sometimes gravely, irredeemably ill) or even die. So what happens if, instead of becoming cocooned in the protective armor of immunization, one, instead, is injured by the very thing meant to confer resilience? Well, the answer is VICP, the Vaccine Injury Compensation Program which spells out what a body is to do. VICP first became effective in October, 1988.Administered by the Department of Health and Human Services, in essence, the Program provides liability protection for industry and, presumably, fair compensation for patients injured by vaccines. The VICP created a no-fault system that pays for injuries caused by specific immunizations. Some of the common immunizations covered by the VICP include tetanus, pertussis, measles, mumps, rubella, polio, hepatitis A and B, and varicella (chicken pox). In 2004, Congress added trivalent”influenza to the VICP. As of this moment, monovalent and bivalent influenzas have not been added to the list. The swine flu vaccine of 1976-1977 swine flu was the last suspected pandemic influenza virus was a monovalent vaccine. However, there is specific provision in the VICP that any new vaccine recommended by the Centers for Disease Control for routine administration…after publication by the Secretary of a notice of coverage is a covered vaccine. Presumably, then, the bird flu vaccine (presuming one becomes available) would be covered under the VICP. Special Masters (persons appointed to act as the representative of the court in some particular act or for some particular purpose) at the Federal Claims Court adjudicate compensation based on a vaccine injury table. To recover damages, a claimant must show that a listed vaccine caused their injury. A compensation trust fund is financed by a tax on each dose. Interestingly, influenza vaccine litigation has been rare with only 10 reported verdicts or judicial decisions over the past 20 years, most of which resulted in small verdicts.When a new vaccine is added to the VICP, people who think that they have been injured have 2 years from the date the vaccine becomes covered to file a claim for injuries which may have occurred up to 8 years before the date the vaccine is added to the list. A claim may be made for an injury or death thought to be the result of a covered vaccine. Claims may be filed by the injured individual; or a parent, legal guardian, or trustee may file on behalf of a child or an incapacitated person.First, an individual claiming injury or death from a vaccine must file a petition for compensation with the Court and with the Secretary of Health and Human Service. The filing fee is $250.00. Next, a physician at the Division of Vaccine Injury Compensation, reviews the petition to determine whether it meets the medical criteria for compensation and makes a recommendation on compensability. This recommendation is provided to the Court through a report filed by the Department of Justice although it is not binding. The Health and Human Services position is represented by an attorney from the Department of Justice in hearings before a special master. In turn, the special master makes the initial decision for compensation under the VICP. Decisions may be appealed to a judge of the Court, then to the Federal Circuit Court of Appeals, and then to the Supreme Court. No petition may be filed under the VICP if a civil action is pending for damages related to the vaccine injury, or if damages were awarded by a court or in settlement of a civil action against the vaccine manufacturer or administrator.While it is not a requirement to have an attorney represent the claimant during this process, because the Rules of the Court are very specific and must be strictly followed, most petitioners have attorneys represent them. The Act provides for the payment of reasonable attorneys fees and costs, regardless of the Courts decision on compensability, providing the case is brought in good faith and there is a reasonable basis for the claim. Ah, that it were always so!In the case of vaccine-related injury, an award may include reasonable compensation for past and future un-reimbursed medical expenses, custodial care, and rehabilitation costs. Actual and projected pain and suffering and emotional distress are capped at not more than $250,000. One may also recover lost earnings as well as reasonable attorneys fees and costs.In the case of vaccine-related death, $250,000 may be recoverable by the estate of the deceased as well as reasonable attorneys fees and costs .A host of medical records must be provided with the petition. These include medical records prior to vaccination, vaccination record and post-injury in-hospital and outpatient records.While we all hold our breath (probably the best way to insure the virus will not spread if it ever takes flight from bird to man) that the virus will not strike, mass use of an untried vaccine during the public health emergency that bird flu would compel could (and likely would) result in numerous adverse events. In order to be fair, the no-fault VICP must specifically include the bird flu, must become less burdensome on plaintiffs and must be streamlined to be less time-consuming an undertaking for all. If not, not only will vaccine manufacturers be less willing to invest in what may prove to be largely experimental vaccines, but so too might the system be overwhelmed by the sheer volume of claims.Bird flu, if and when it strikes, will present new medical, ethical and legal challenges and, if we are to meet those challenges, reasoned thinking, planning and contingencies must be thought out carefully, implemented and fine tuned well in advance of the first wave of the assault.Rohn K. Robbins is an attorney licensed before the Bars of Colorado and California who practices in the Vail Valley. He is a member of the Colorado State Bar Association Legal Ethics Committee and is a former adjunct professor of law. Robbins lectures for Continuing Legal Education for attorneys in the areas of real estate, business law and legal ethics. He can be heard on Wednesdays at 7 p.m. on KZYR radio (97.7 FM) as host of Community Focus. Mr. Robbins can be reached at 926-4461 or at robbins@colorado.net.Vail, Colorado


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