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Bar News - August 17, 2016


Workers’ Comp & Personal Injury: Vaccine Injury Claims: National Program Offers Relief for Clients

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Most children undergo a number of routine vaccinations at their annual pediatrician visits. Adults, too, receive vaccinations, such as the influenza vaccine. For the vast majority of people, there are no complications from the vaccines. However, some people experience serious medical consequences.

Consider the following example. A healthy 4-year-old child attends her routine pediatrician visit and is administered several vaccinations, including Diphtheria, Tetanus, and Pertussis (DTaP), Measles, Mumps, Rubella (MMR), Chickenpox/Varivax (Varicella live) and Polio/IPV/IPOL (Polio virus inactivated). Ten days later, the child develops a fever. Her parents give her Tylenol, and she sleeps most of the day. The next day she is very lethargic, as well as the following day. She has her usual morning nap, but when her mother goes in to check on her she is completely unresponsive – her eyes are open, but she is staring blankly. She begins to choke on her own saliva. Her parents rush her to the emergency room, where she is diagnosed with a seizure disorder and, eventually, autoimmune encephalitis. She continues to suffer seizures even with treatment. Her treating doctors opine that she had a reaction to her 4-year-old vaccinations. She will need care for the rest of her life.

In this circumstance, there is likely no medical malpractice case. There is possibly a products liability case, which may be very difficult to prove. The family needs help for their daughter. However, civil litigation is not the only option available to the family. There is a process designed to help children and adults injured by vaccines – the National Vaccine Injury Compensation Program.

History of the Program

In the 1980s, there were reports of serious side effects from certain childhood vaccines. Some vaccine companies stopped making certain vaccines in fear of litigation. In response to an anticipated public health crisis, Congress created the National Childhood Vaccine Injury Act of 1986 to compensate children injured by vaccines. The vaccine injury program is funded from a tax on each dose of vaccine purchased. Today, the National Vaccine Injury Compensation Program covers not only injuries from childhood vaccines, but injuries from other vaccines as well, such as the influenza vaccine.

Filing a Claim under the Vaccine Act

Claims under the Vaccine Act are under the jurisdiction of the United States Court of Federal Claims, as dictated in 42 USC Section 300aa-12. An attorney must be specially admitted to practice before United States Court of Federal Claims. Claims are decided by the Office of Special Masters and defended by the Department of Justice.

A vaccine-injured person must first file a petition with the United States Court of Federal Claims before filing a lawsuit in federal court, according to 42 USC Section 300aa-11 and Laughter v. Aventis Pasteur Inc. (MD NC 2003). Failure to do so will result in dismissal for failure to exhaust remedies under the Vaccine Act. A vaccine-injured person does not lose his or her right to file a civil lawsuit, however. In Laughter, the court, citing 42 USC Section 300aa-21(a), held: “After a judgment has been entered by a special master in the Vaccine Court, the petitioner may elect either to accept the judgment or to file a civil action for damages in state or federal court.” There is a mediation process involving former special masters as mediators.

To file a claim, one must file a petition electronically, describing who is injured, the vaccine that caused the injury, when the vaccine was administered, the type of injury, when the first symptom appeared and the likely lasting effects of the vaccine injury. The petition must include medical records and other documentation. The statute of limitations to file a claim is three years after the first symptom of the vaccine injury; if there is death from the vaccine, the statute of limitations is two years from the death and four years after the start of the first symptom of the vaccine-related injury from which the death occurred.

The Vaccine Injury Table

The Vaccine Injury Table lists the vaccine at issue, the commonly known adverse conditions and the time period when the first symptom of that condition should have appeared. The table was created following extensive research, including peer-reviewed medical journals, regarding the known side effects of vaccines. If the first symptom of injury occurs within the time period specified in the table, it is presumed that the vaccine was the cause of the injury and the burden shifts to the respondent to show that the vaccine did not cause the injury, according to Ryman v. HHS (2005).

The cases that fit within the table’s time and symptom parameters are called “table cases;” all other cases are called “off-table” cases. A claim is not precluded if it is not a “table case.” Rather, in off-table cases, a petitioner “must establish by a preponderance of the evidence that the vaccine was both a ‘but-for’ cause of the injury and a substantial factor in bringing about the injury.” Id.; Althen v. HHS, (Fed. Cir. 2005).

In the case example above, under the Vaccine Table for the MMR vaccine, encephalopathy or encephalitis is a listed condition and the time period of symptom onset is between five and 15 days. In the example, the first symptom was experienced 10 days after vaccine administration. Consequently, the example above is a table case and it will be presumed that the vaccine caused the injury.

Damages available through the Vaccine Act include:

  • Medical bills;
  • Future medical care;
  • Lost future earnings;
  • Pain and suffering (up to $250,000); and
  • Life care expenses
  • Attorney fees and costs are also permitted.

Attorneys are advised to counsel clients about the Vaccine Act if the client is injured by a vaccine. Indeed, the Vaccine Act specifically provides, “It shall be the ethical obligation of any attorney who is consulted by an individual with respect to a vaccine-related injury or death to advise such individual that compensation may be available under the program for such injury or death.”

The Vaccine Act established by Congress can provide compensation for people injured by vaccines. This is a no-fault system that is designed to provide quicker access to help for vaccine-injured people. Damages available under the Vaccine Act are not insignificant and can include pain and suffering and lost future earnings.


Joseph McDowell
Heather Menezes

Joseph McDowell and Heather Menezes practice at McDowell and Osburn in Manchester. Both are admitted to practice in New Hampshire state and federal courts, as well as the United States Court of Federal Claims. McDowell is also admitted to practice in the United States Supreme Court and the First Circuit Court of Appeals. Contact McDowell or Menezes at jmcdowell@mcdowell-osburn.com or hmenezes@mcdowell-osburn.com or (603) 623-9300.

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