Why the U.S. Pays Billions to People Who Claim Injury by Vaccines
While vaccines protect millions throughout the world and the vast majority are safe and effective – the fact remains that every year, many Americans including young children, are injured by vaccines. With the fever pitch surrounding news about various Coronavirus vaccines – it’s a good time to consider the legal rights of family and children that are negatively impacted by vaccines. For nearly every single drug other than vaccines, the maker of the drug can be held legally liable for the harm caused by it. However, vaccine manufacturers have successfully lobbied the U.S. congress for liability protection for harms caused by vaccines. In 1986, Congress enacted the “National Childhood Vaccine Injury Act of 1986” which established what is known as the National Vaccine Injury Compensation Fund. It was established to provide individuals that are found to be injured by certain vaccines to be compensated by the Federal government. In the 4 years between 2013 to 2017 alone, the U.S. Government paid out an average of $229 million per year to patients and their families. The average per claim payout was $430,000.
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To be entitled to compensation under the program, the applicant must establish that
- a vaccine-related injury or death has occurred, either by proving
- that a vaccine actually caused or significantly aggravated an injury (causation-in-fact); or
- by demonstrating what is referred to as a ‘‘Table injury.’’ That is, a petitioner may show that the vaccine recipient (1) received a vaccine covered under the Act; (2) suffered an injury of the type enumerated in the regulations at 42 CFR 100.3–the ‘‘Vaccine Injury Table’’ (Table)— corresponding to the vaccination in question; and (3) that the onset of such injury took place within the time period specified in the Table.
By The Numbers
As trial lawyers, we know how expensive complex, protracted litigation can be. It is often slow and cost prohibitive to solve disputes through litigation. However, the data provided by the National Vaccine Injury Compensation Fund does show some encouraging data points.
Is a COVID-19 Vaccine Covered?
While 42 U.S.C. 300aa–14(c) and (e) permits the Secretary of the Department of Health and Human Services to revise the Table, it is unclear if table will be revised to specify the vaccines for COVID-19. Even without an explicit change to the table, there may be an argument that it fits under an existing category on the table – item XVII. The Table currently includes 17 vaccine categories, with 16 categories for specific vaccines, as well as the corresponding illnesses, disabilities, injuries, or conditions covered, and the requisite time period when the first symptom or manifestation of onset or of significant aggravation after the vaccine administration must begin to receive the Table’s legal presumption of causation. The final category of the Table, ‘‘Item XVII,’’ includes ‘‘[a]ny new vaccine recommended by the Centers for Disease Control and Prevention for routine administration to children, after publication by the Secretary of a notice of coverage.’’
| Vaccine | Illness, disability, injury or condition covered | Time period for first symptom or manifestation of onset or of significant aggravation after vaccine administration. |
|---|---|---|
| I. Vaccines containing tetanus toxoid (e.g., DTaP, DTP, DT, Td, or TT) | A. Anaphylaxis B. Brachial Neuritis C. Shoulder Injury Related to Vaccine Administration D. Vasovagal syncope | A. ≤4 hours B. 2-28 days (not less than 2 days and not more than 28 days) C. ≤48 hours D. ≤1 hour |
| II. Vaccines containing whole cell pertussis bacteria, extracted or partial cell pertussis bacteria, or specific pertussis antigen(s) (e.g., DTP, DTaP, P, DTP-Hib) | A. Anaphylaxis B. Encephalopathy or encephalitis C. Shoulder Injury Related to Vaccine Administration D. Vasovagal syncope | A. ≤4 hours B. ≤72 hours C. ≤48 hours. D. ≤1 hour |
| III. Vaccines containing measles, mumps, and rubella virus or an of its components (e.g., MMR, MM, MMRV) | A. Anaphylaxis B. Encephalopathy or encephalitis C. Shoulder Injury Related to Vaccine Administration D. Vasovagal syncope | A. ≤4 hours B. 5-15 days (not less than 5 days and not more than 15 days). C. ≤48 hours D. ≤1 hour |
| IV. Vaccines containing rubella virus (e.g., MMR, MMRV) | A. Chronic arthritis | 7-42 days (not less than 7 days and not more than 42 days). |
| V. Vaccines containing measles virus (e.g., MMR, MM, MMRV) | A. Thrombocytopenic purpura B. Vaccine-Strain Measles Viral Disease in an immunodeficient recipient | A. 7-30 days (not less than 7 days and not more than 30 days). B. Varies depending on identification of virus strain |
| VI. Vaccines containing polio live virus (OPV) | A. Paralytic Polio In a non immunodeficient recipient B. Paralytic Polio In an immunodeficient recipient C. Vaccine-Strain Polio Viral Infection In a non-immunodeficient recipient D. Vaccine-Strain Polio Viral Infection In an immunodeficient recipient E. Vaccine-Strain Polio Viral Infection in a vaccine associated community case | A. ≤30 days B. ≤6 months D. ≤30 days E. ≤6 months F. n/a |
| VII. Vaccines containing polio inactivated virus (e.g., IPV) | A. Anaphylaxis B. Shoulder Injury Related to Vaccine Administration C. Vasovagal syncope | A. ≤4 hours B. 48 hours C. ≤1 hour |
| VIII. Hepatitis B vaccines | A. Anaphylaxis B. Shoulder Injury Related to Vaccine Administration C. Vasovagal syncope | A. ≤4 hours B. ≤48 hours C. ≤1 hour |
| IX. Haemophilus influenzae type b (Hib) vaccines | A. Shoulder Injury Related to Vaccine Administration | A. ≤48 hours |
| X. Varicella vaccines | A. Anaphylaxis B. Disseminated varicella vaccine-strain viral disease (if unidentified) C. Shoulder Injury Related to Vaccine Administration D. Vasovagal syncope | A. ≤4 hours B. 7-42 days (not less than 7 days and not more than 42 days). C. ≤48 hours D. ≤1 hour |
| XI. Rotavirus vaccines | A. Intussusception | A. 1-21 days (not less than 1 day and not more than 21 days). |
| XII. Pneumococcal conjugate vaccines | A. Shoulder Injury Related to Vaccine Administration B. Vasovagal syncope | A. ≤48 hours B. ≤1 hour |
| XIII. Hepatitis A vaccines | A. Shoulder Injury Related to Vaccine Administration B. Vasovagal syncope | A. ≤48 hours B. ≤1 hour |
| XIV. Seasonal influenza vaccines | A. Anaphylaxis B. Shoulder Injury Related to Vaccine Administration C. Vasovagal syncope D. Guillain-Barré Syndrome | A. ≤4 hours B. ≤48 hours C. ≤1 hour D. 3-42 days (not less than 3 days and not more than 42 days). |
| XV. Meningococcal vaccines | A. Anaphylaxis B. Shoulder Injury Related to Vaccine Administration C. Vasovagal syncope | A. ≤4 hours B. ≤48 hours C. ≤1 hour |
| XVI. Human papillomavirus (HPV) vaccines | A. Anaphylaxis B. Shoulder Injury Related to Vaccine Administration C. Vasovagal syncope | A. ≤4 hours B. ≤48 hours C. ≤1 hour |
| XVII. Any new vaccine recommended by the Centers for Disease Control and Prevention for routine administration to children, after publication by the Secretary of a notice of coverage | A. Shoulder Injury Related to Vaccine Administration B. Vasovagal syncope | A. ≤48 hours B. ≤1 hour |
Our Team Can Help You Get Compensation
When a patient of individual brings a claim against the National Vaccine Injury Compensation Fund, a team of doctors from the Department of Health and Human Services will begin to review all of the patients records. Once the review is completed, that team will either recommend that the case be compensated, or defend it in a specific “vaccine court” in the Federal Court of Claims that is established for the adjudication of such claims.
At Sawan & Sawan, our family of skilled personal injury lawyers know how to navigate the process to obtain compensation for the injured. We can help you through the often confusing patchwork of laws, provisions and procedures to help you get the justice you deserve..
How Long Do I Have to Sue for a Vaccine Injury?
Vaccine injury compensation follows extremely specific and technical rules. On unique aspect (of many) is that the law affixes a specific timeframe to vaccine injury claims. The general filing deadlines for a vaccine injury claims are as follows:
- For an injury, your claim must be filed within 3 years after the first symptom of the vaccine injury
- For a death, your claim must be filed within 2 years of the death and 4 years after the start of first symptom of the vaccine-related injury from which the death occurred
- When a new vaccine is covered by the VICP or when a new injury/condition is added to the Vaccine Injury Table, claims that do not meet the general filing deadlines must be filed within 2 years from the date the vaccine or injury/condition is added to the Table for injuries or deaths that occurred up to 8 years before the Table change
What Type of Compensation Can I Receive?
If you or a loved one have been injured by a vaccine, the law provides you the right to recovery. The amount and type of compensation depends in large part on the severity of the injury sustained.
For a Vaccine-Related Injury, you may seek compensation for:
- A reasonable amount for past and future non-reimbursable medical, custodial care, and rehabilitation costs, and related expenses (There is no limit on the amount a person with an injury may be paid for these types of expenses. Payments are based on your vaccine injury needs.);
- up to $250,000 for actual and projected pain and suffering;
- lost earnings; and/or
- Reasonable lawyers’ fees and other legal costs or legal costs, not fees, of petitioners representing themselves, if your claim was filed on a reasonable basis and in good faith.
- up to $250,000 as a death benefit for the estate of the deceased; and
- Reasonable lawyers’ fees and other legal costs or legal costs, not fees, of petitioners representing themselves, if your claim was filed on a reasonable basis and in good faith.
About the Authors: Sawan & Sawan is a Toledo, Ohio based Personal Injury, Civil Litigation, Truck Accident, Car Accident and Insurance Law Firm with lawyers licensed to practice in Ohio, Michigan and Georgia.
Dennis P. Sawan
Licensed in Ohio and Georgia
Christopher A. Sawan
Licensed in Ohio and Michigan
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