Monday, September 24, 2012

Does the National Vaccine Injury Compensation Program Protect Vaccine Manufacturers?

The National Vaccine Injury Compensation Program (VICP) was developed in the 1980s to ensure a steady supply of vaccines were available and to prevent vaccine manufacturers from exiting the market due to rising litigation costs.  Some antivaxxers claim this was nothing more than a handout to the vaccine manufacturers because once the VICP was in place there was a higher burden of proof in order to "win" a vaccine injury lawsuit.  They also claim the VICP has allowed the vaccine manufacturers to make billions in profits with no risk since they are legally protected from vaccine injury lawsuits.

Is there any truth to these claims?  Not really.  

According to the U.S. Department of Health and Human Services (HHS), "In the early 1980s, news reports of serious side effects from the DTP (diphtheria, tetanus, pertussis) vaccine caused some to question the safety of the vaccine.  Parents began filing many lawsuits against vaccine companies, doctors, and nurses.  Some vaccine companies decided to stop making vaccines, which created vaccine shortages and threatened the Nation’s health.

All of these problems led a group of doctors, public health organizations, vaccine companies and private citizens to encourage Congress to enact a new law to compensate those found to be injured by childhood vaccines. The National Childhood Vaccine Injury Act of 1986 (Public Law 99-660) created the VICP, which began on October 1, 1988."

The truth is, in many ways the VICP made it easier for people to file claims, because it isn't a requirement to be a US citizen, and in some cases a citizen who receives a vaccine outside of the US can still file a claim with the VICP.  A claim can also be filed even if a vaccine was used in an off-label manner and even if the vaccine was administered against administration recommendations.  A claim can even be filed for a vaccine which isn't even licensed in the United States.  In a traditional lawsuit prior to the VICP, many of these things would have made compensation of an injury much more difficult if not entirely impossible.

Also, assuming some very minimal requirements are met, the VICP will pay legal fees and lawyer's fees related to the claim even if the claim is ultimately denied.  Previously in civil court proceedings, if a claim was rejected, the person who filed the claim would most often be responsible for their legal fees, thus this was a huge benefit to those who have filed claims.  In some cases, the risk of having to pay excessive legal fees could serve as a barrier preventing many people from filing lawsuits surrounding their injuries.

In addition to this, the VICP does not require a person specifically prove that the vaccine caused an injury.  Although the VICP does include injury as one of the criteria, an injured person can alternatively claim that the vaccine merely made an existing injury worse.  The VICP also includes an option for an injured person to merely prove they had a symptom of an injury within a specific time period - but they do not actually need to prove that symptom was caused by the vaccine alone.  The "vaccine injury table" simplifies the process in many cases because it includes a list of conditions which are presumed to be caused by vaccines.  This isn't to say these are the only conditions that may be caused, but in many ways this is a "fast track" to simplify the process for a person who feels he or she has been injured by a vaccine.

In summary, the VICP doesn't require a higher burden of proof than would exist in a civil lawsuit, and it is actually quite the opposite.  Within the VICP, a person can claim they were injured and provided their injury is legitimate and provided they filed their claim within the required time period, they have a much easier chance of winning the case than they would have under the rules of a traditional civil lawsuit.

Also, it is very important to clear up one major misconception with the VICP.  The VICP itself does not prevent a vaccine-injured person from suing the vaccine manufacturer or even the person who administered the vaccine.  In some cases it may be necessary to file with the VICP first, but regardless of the outcome of that case a person who feels he or she was injured by a vaccine can still file a civil lawsuit against the vaccine manufacturer, healthcare system, doctor, nurse, or anyone else involved in the process.

What the VICP does is offer a streamlined process to handle vaccine injury cases.  It reduces costs for both parties and helps to reduce the costs of frivolous lawsuits from unscrupulous lawyers who would seek millions in compensation for symptoms they couldn't even link to vaccines in the hopes the vaccine manufacturer would offer to settle out of court just to make them go away.  It also earmarks funds from each vaccine ($0.75 per dose) which are held in the vaccine injury compensation trust fund and are used to compensate victims or those who file claims against the VICP.

Of course the VICP isn't perfect, but clearly it is better than forcing vaccine manufacturers out of business due to legal threats, and it helps ensure a supply of life-saving vaccines are available to anyone who wants them.  One major issue with the VICP might just be how easily some lawyers have taken advantage of the "pay no matter the outcome" design of the VICP.  

For example, many lawyers specialize in "vaccine injury" cases because they understand whether the client wins or loses in court, the lawyer's fees will still be paid by the VICP.  In these cases, there is zero risk to the lawyer because he or she knows their fees will be covered.  This isn't like a civil lawsuit where if the claimant loses the case there will be no money to pay for legal fees... so in essence this is a guarantee for the lawyers.

In fact, since the original claims were filed in the late 80s, $2.3 Billion has been paid to the claimants themselves, but over $91.5 Billion has been paid to cover attorney's fees and other legal costs.  Thus for every dollar coming out of the VICP, only 2.5 cents goes to the actual "injured" party, while 97.5 cents goes to lawyers and to fees.  Perhaps even more interesting is for the VICP claims that were denied, over $49.6 Billion has been paid to cover attorney's fees and other legal costs.  This is $49.6 Billion that most likely would have never been paid under the rules of a traditional civil case.

As you can see even when the lawyers lose... they actually win.  It seems that if the VICP is a handout to anyone... it isn't the vaccine manufacturers - it is trial lawyers.

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