Last October, my team members and I participated in a mediation as student-attorneys for one of our clients. Our client was a surgeon and a colonel who served his country for over two decades. As a result of his last deployment, he received multiple vaccinations, which caused his health to deteriorate. He was subsequently diagnosed with more than a dozen conditions – the most serious being the brain injury which caused him to give up his career as a surgeon, many of his leisure activities, and spending time with his children and grandchildren.
The colonel and his wife waited more than five years for the mediation, and 66 exhibits and thousands of pages of medical records later, my team and I sat across from an attorney from the U.S. Department of Justice in an attempt to settle the colonel’s case. The mediation took an entire day, but we settled for $850,000.00 – which was 70 percent more than our client’s benchmark. The mediation was an incredible experience – not only did it teach me and my team extremely valuable skills, but it was truly heartwarming to know that the colonel and his wife would finally be able to get the financial help that they so desperately needed.
As part of the Vaccine Injury Clinic at the George Washington University Law School, I am lucky enough to have been a part of a clinic that was the first of its kind in the country. Students in the clinic represent young children and adults who are seeking compensation for vaccine-related injuries and death. The student-attorneys are able to practice before the U.S. Court of Federal Claims and have the opportunity to handle cases in different stages of a claim filed with the National Vaccine Injury Compensation Program (VICP).
Before joining the clinic, I had no idea that this program even existed, as there was no mention of the VICP in our 1L tort law class. In fact, I have come across a great majority of people in the legal profession who have no idea what the VICP does or how the program works. A large part of this is because vaccine injuries are still a taboo topic. While vaccines are incredibly important, like any other pharmaceutical, some people have reactions to them. Their reactions range from mild to devastating.
As the number of claims continue to increase every year, it is important that law students are aware of the VICP as it is becoming increasingly relevant to the legal profession. In addition, my clinic professors who have practiced in this field for decades have observed an increasing number of instances of legal malpractice for failing to comply with the rules and regulations of the VICP –specifically the statute of limitations.
The National Vaccine Injury Compensation Program was created in the 1980s as a no-fault alternative to the traditional legal system for resolving vaccine injury petitions. The program is funded by a 75 cent excise tax on every dose of vaccines recommended by the Centers for Disease Control and Prevention. Since 1988, more than 16,794 petitions have been filed with the VICP. The total compensation paid over the life of the program is approximately $3.3 billion.
Any individual who receives a vaccine listed on the Vaccine Injury Table and believes that they have been injured as a result of the vaccine can file a petition. The U.S. Department of Health and Human Services (HHS) hosts the program, conducts medical reviews of the petitions, and makes court-ordered compensation payments. The U.S. Department of Justice (DOJ) represents HHS. All claims are filed with the U.S. Court of Federal Claims and are assigned to eight special masters that make the final decision regarding whether a petition will be compensated, as well as the type and amount of compensation to be given.
Individuals may file a petition regardless of their age and whether they are a U.S. citizen. However, there are certain requirements that petitioners must meet before they are eligible to file a petition. First, the individual who received the covered vaccine must have been administered the vaccine in the United States or its trusted territories. Individuals may file a petition when the injury lasted for more than six months after the vaccination; or resulted in inpatient hospitalization and surgical intervention; or resulted in death. Petitioners must prove by a preponderance of the evidence that: the injury or condition alleged to be associated with the covered vaccine meets the requirements of the Vaccine Injury Table; or that the vaccine caused the injury or condition; or that the vaccine significantly aggravated an existing illness or condition that caused the condition to worsen.
One of the most important things to look out for as an attorney is the filing deadline. For an injury, petitioners must file a claim within three years after the first symptom or manifestation of onset or of the significant aggravation of the injury. For individuals who have died from their vaccine injury – their parent, legal guardian, or legal representative of the estate must file within two years of the death and within four years of the first symptom or manifestation of onset or of the significant aggravation of the injury from which the death resulted.
The statute of limitations is incredibly important – and should be one of the most important things to keep in mind, if an attorney ever comes across a case that they think may be eligible for the program.
Unlike most state laws for personal injury or medical malpractice, there is no tolling provision for minors in the VICP, and there is no discovery rule. The statute of limitations is strictly enforced.
Under the VICP, a petitioner can establish causation in two ways. The first is through a statutorily prescribed presumption of causation where the petitioner shows that the injury after vaccination is listed on the Vaccine Injury Table (“table injury”) and occurred within the specified timeframe for that vaccine and injury. The nature of the injury has to meet the description (if any is listed) described on the table.
When the injury is not listed in the Vaccine Injury Table (“off-table injury”), the petitioner must prove causation in fact. Referred to as the Althen prongs, the petitioner has a three-prong burden of proof to show by preponderant evidence that the vaccination brought about their injury:
- A medical theory causally connecting the vaccination and the injury;
- A logical sequence of cause and effect showing that the vaccination was the reason for the injury; and
- A showing of a proximate temporal relationship between vaccination and injury.
The Althen prongs must cumulatively show that the vaccination was a “but-for” cause of the harm, rather than just an insubstantial contributor in, or one among several possible causes of the harm.
This is an extremely brief description of the program and how it works. For students who are interested in tort law and litigation, health care law, or even intellectual property law, product liability, appellate, and constitutional law it will be worth your time to check out this site to learn more about the program. The Vaccine Injured Petitioners Bar Association (VIP Bar) is holding their annual meeting in conjunction with the judicial conference of the U.S. Court of Federal Claims on May 2-4.