What is the National Vaccine Injury Compensation Program?

A small child afraid of needles. An eighteen-year-old about to go to college. An elderly person getting their yearly flu shot. Almost everyone gets vaccinated. And in the vast majority of cases, everything is just fine. Maybe the injection site hurts for a few hours, but it passes. You are still healthy.

But rarely, less than a thousandth of a percent of the time, a serious injury occurs. Examples include a vaccine injection that permanently damages your shoulder, you develop a seizure disorder or other neurological problem or, in the most devastating of circumstances, a loved one dies as a result of an adverse reaction to a vaccine. In these exceptionally rare circumstances, you need exceptional help. Contact our vaccine injury legal team today to get started.

The National Vaccine Injury Compensation Program (“VICP“) is a no-fault system that compensates people who are injured significantly when they receive certain vaccines. A joint effort by the Department of Justice, the Department of Health and Human Services, and the US Court of Federal Claims, it has awarded more than $3.9 billion since Congress passed the National Vaccine Injury Act. Although it is adversarial, the program is not like your typical lawsuit. To win, you only need to prove that you are more likely than not to have suffered an injury as a result of a vaccine. As your thorough, steadfast ally, we can guide you through the complicated process of making a claim.

How does the VICP work?

If you have suffered an injury after receiving a covered vaccine and meet certain criteria, you can file suit against the Secretary of Health and Human Services (“HHS”) in the United States Court of Federal Claims. Your case goes before a special master, a kind of judge who hears and decides your claim.  After initiating a claim by filing a petition for compensation, HHS reviews your medical records to determine whether there is enough evidence to go forward, or whether you need more. Your lawyer represents you before the special master; an attorney for the Department of Justice, Civil Division represents HHS.

If you can show that your injuries more likely than not resulted from the vaccine, or that the vaccine aggravated a preexisting condition, you could receive compensation. If you do not agree with the special master’s decision, you can appeal to the Court of Federal Claims, and then to the Court of Appeals for the Federal Circuit. A seventy-five cent tax on all doses of covered vaccines funds the VICP’s awards and legal fees and, because Congress intended VICP suits to be no-cost to you, even if you lose your case, the government still pays your attorney’s fees.

In certain situations, your case may not proceed to trial. Most of the time the government settles cases before they go to trial. The Health Resources & Services Administration states that “[a]lmost 80% of all compensation awarded by the VICP comes as result of a negotiated settlement between the parties in which HHS has not concluded, based upon review of the evidence, that the alleged vaccine(s) caused the alleged injury.”

By law, you have to seek compensation from the VICP before you can pursue a civil action, like a medical malpractice or products liability suit, for any injuries that result from vaccinations with covered vaccines. Only after you have gone through the VICP and rejected the court’s judgment will you be able to file a civil suit.

What Vaccines are Covered?

There are currently 16 vaccines covered under the VICP. In general, the program covers vaccines regularly given children, although you do not have to be a child to receive a vaccine or file a claim.

The vaccines currently covered are:

1. Influenza (Seasonal flu)
2. Tetanus
3. Pertussis (Whooping cough)
4. Measles
5. Mumps
6. Rubella
7. Human Papillomavirus
8. Meningitis

9. Diphtheria
10. Chicken Pox
11. Polio
12. Rotavirus
13. Haemophilus Influenzae type b
14. Hepatitis A
15. Hepatitis B
16. Pneumonia (conjugate vaccine)

Common injuries include Anaphylaxis (a severe allergic reaction), Vasovagal syncope (fainting), and SIRVA (shoulder injuries related to vaccine administration).

What Federal Offices are Involved?

The VICP draws from more than one department, and more than one branch, of the United States government. When you bring a case for vaccine injury, you sue the Secretary of Health and Human Services. Attorneys from the Department of Justice, Civil Division represent HHS. The Department of Health and Human Services, Division of Vaccine Injury Compensation performs an initial review of your medical records. The US Court of Federal Claims, Office of Special Masters hears your petition. Appeals go to the US Court of Federal Claims and then on to the US Court of Appeals for the Federal Circuit.

What is the Court Procedure for VICP Claims?

Ideally with the help of an attorney advocate, your petition is electronically filed with the US Court of Federal Claims, Office of Special Masters followed by exhibits which contain all of your relevant medical information. HHS reviews your information then the Department of Justice Attorney assigned to your case prepares a report detailing the government’s position on the merits of your claim and whether it believes you are entitled to compensation.

After this, your case is overseen by a special master, whose job it is to decide the outcome of your case. The special master examines all the evidence submitted, may request expert reports and if the parties are unable to settle may, but will not always, hold a hearing to determine entitlement to compensation and damages.

If you do not like the outcome of the hearing you can file a Motion for Reconsideration. In other words, you can appeal the case to the Court of Federal Claims. In general, appeals have to meet a high bar to overturn a Special Master’s legal decisions. The next level of appeal is the Court of Appeals for the Federal Circuit, which holds the Court of Federal Claims to the same standard as the Special Masters. Although it is possible to appeal from the Federal Circuit to the US Supreme Court, the Supreme Court is not obligated to grant an appeal.

Who is Eligible to File a Claim?

To be eligible for compensation, your injuries must be “severe,” and you have to have received one of the vaccines listed in the VICP Compensation Table. You do not, however, have to have a specific injury listed on the table. Likewise, you do not have to be a child. Lastly, your injuries can include aggravation, that is, a vaccine worsening a condition you already have.

For your injuries to qualify as “severe,” your symptoms must have lasted for at least six months, or caused you to go to the hospital for surgery. Alternatively, an injury is severe if it results in a death.

Generally, the VICP does not specify what your injury has to be. As long as you can show it was the result of a vaccine, you may be eligible for compensation.

You can also file a claim if you are the parent or legal guardian of someone who has suffered a vaccine injury, or if you are managing the estate of someone who died because of a vaccine injury. The VICP does impose some territorial rules; generally you can file a claim only if you were vaccinated on US soil, with some exceptions. Of course, you also have to file on time…

How long does someone have to file in the VICP after vaccination?

In general, the deadline to file a vaccine injury claim is exactly three years after the first symptom of your injury or aggravation began. If you are filing a claim because of a vaccine-caused death, you have exactly two years after the person died and within four years of the person’s first symptom of vaccination injury.

What can you receive compensation for?

Although your injuries have to be severe, the VICP does not limit what they can include. If you can prove it, you can receive several types of compensation:

  1. If you have medical and rehabilitative expenses that your health insurance or another state or federal program will not cover, you can be compensated for these.
  2. If you experienced pain and suffering, or if you will in the future, you may be eligible to receive up to $250,000.
  3. If you are no longer able to work or earn as much as before, you can receive compensation for lost wages and “impaired earning capacity.”

You can receive awards for any of these categories, a combination of them, or all three. Lastly, the VICP covers your attorney’s fees and litigation costs, even if you lose your case.

How much has the Vaccine Court paid out?

The Health Resources & Services Administration states, “[t]otal compensation paid over the life of the program is approximately $3.9 billion.” The Department of Justice offers a smaller figure: $1.8 billion.

What is the VICP Compensation Table?

HHS maintains a list of all covered vaccines, in the  Vaccine Injury Table. This table also lists common injuries for each vaccine and the time period when these injuries appear. Injuries listed on the table are called “Table Injuries.”

What are “Table Injuries” and “Non-table injuries?”

A “Table Injury” is any injury which the Vaccine Injury Table associates with a particular vaccine. If you have a table injury within the amount of time the table specifies, the court presumes the vaccine caused the injury, so your argument is considered to have already been made for you. In other words, your attorney does not have to make a case that the vaccine caused you harm. This means the government has to work harder and prove you suffered an injury for a reason other than the vaccine.

For example, someone who received a rotavirus vaccine and suffered intussusception between one and twenty-one days after the vaccination by definition has suffered a table injury. A person who gets the MMR vaccine and suffers thrombocytopenic purpura between seven and thirty days after the vaccination has also suffered a table injury. Both the timing and the kind of injury are crucial.

Typical table injuries include anaphylactic shock and syncopal episodes (also called a vasovagal response). Another typical table injury is SIRVA. One table injury for the seasonal flu vaccine is Guillain-Barre Syndrome.

But table injuries are not the only injuries which the VICP covers. “Non-table injuries” are injuries that the VICP Vaccine Injury Table does not include. You can still receive compensation for a non-table injury; however, it is harder. Your attorney has to make a plausible case that more likely than not your injury resulted from the vaccine. It is not enough for you to have symptoms shortly after receiving a vaccine. Your attorney also has to offer an expert who can show a logical, medical explanation.

An example of a non-table injury is transverse myelitis.

Even if you have suffered a non-table injury, you can still seek compensation. We can draw on our knowledge, experience, and strengths as legal advocates to make your case and provide lasting value.

All of this sounds scary. Should I avoid getting vaccines?

While the majority of the time, a vaccine is unlikely to harm you, whether or not to get a vaccine is a personal decision you have to make in conjunction with your health care provider. But in the unlikely event you were to suffer a serious injury, it is critical to look for an experienced team of legal professionals who can help you navigate the process of getting compensation for your vaccine injury.

Do you suspect you were affected by a vaccine? Contact us today to speak to our team of experienced legal professionals.

 

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