By Scott Merrill
As new cases of COVID-19 and hospitalizations continue to rise, the news that a vaccine could be available by the beginning of the year couldn’t have come at a better time for Granite Staters.
Of course, for every bit of good news these days, many unknowns remain.
Laying aside issues of whether enough vaccines will be available and how many people will agree to take them, one issue not being talked about, according to personal injury attorney Heather Menezes of Shaheen and Gordon, are benefits for those who experience long-term side effects from a vaccine or other injuries from procedures related to the pandemic.
Attorney Menezes represents individuals injured by vaccines in the Vaccine Injury Compensation Program (VICP). The VICP is a federal program that was established after lawsuits against vaccine manufacturers and healthcare providers threatened to cause vaccine shortages and reduce vaccination rates. The VICP began accepting petitions (also called claims) in 1988.
The VICP is a no-fault system that compensates individuals injured by certain vaccines.
However, currently, the COVID-19 vaccine will not be part of the VICP. Instead, any injuries resulting from the COVID-19 vaccine will be covered under a different program that provides fewer benefits to those injured by any countermeasure to the COVID-19 pandemic.
The federal program that provides some relief for those seeking benefits related to long-term side effects from vaccines and other pandemic related issues is the Counter Measures Injury Compensation Program (CICP). The CICP is administered by the Health Resources and Services Administration, an agency of the DHHS.
The problem, Menezes said, is that the program isn’t being openly promoted and there is a one-year statute of limitations for claiming benefits. The law states:
The Secretary shall ensure that a State, local, or Department of Health and Human Services plan to administer or use a covered countermeasure is consistent with any declaration under 247d-6d of this title and any applicable guidelines of the Centers for Disease Control and Prevention and that potential participants are educated with respect to contraindications, the voluntary nature of the program, and the availability of potential benefits and compensation under this part.
“The statute says that the government is supposed to promote the counter measures fund so that people know about it. But who knows about it? No one knows about it,” she said. “They’re likely not going to promote the CICP because of concern people won’t get the vaccine. But the biggest thing is that there is a one-year statute of limitations for filing.”
Menezes also explained that someone injured by a countermeasure, such as a COVID-19 vaccine, right now, could not seek recovery from the manufacturer.
“Potentially liable parties such as vaccine manufacturers are immune from liability under the Public Readiness and Emergency Preparedness Act. That individual could also not seek relief under the VICP. The only recovery available for that person is the CICP. If he or she does not make a claim within 1 year, then that person has no other course of action for that injury. So people need to know about this program.”
The one-year statute of limitations for the CICP runs from the time the countermeasure was administered.
“A lot of people don’t know they’re dealing with an injury caused by a vaccine and they’re not immediately thinking, ‘let’s call a lawyer.’ I think most people wait and hope that their pain will go away. But if a person’s injury is from a pandemic countermeasure, then that person will be out of luck if he or she doesn’t file within a year, period.”
While most vaccine-related side effects would be apparent within six weeks to two months, Menezes explained, it is unknown if this would be the case for a COVID-19 vaccine. And the compensation provided by the CICP applies to more than vaccines, she stressed.
“Benefits can apply to any countermeasure that’s applied to the pandemic. This includes vaccines but also ventilators, medications, antibody treatments—anything that could conceivably be considered a countermeasure to the pandemic falls under this counter measures fund,” Menezes said.
One difficulty with receiving benefits for countermeasures vaccinations and procedures is the result of the PREP Act that Menezes mentioned, which addresses liability immunity.
A declaration under the PREP Act was made by the Secretary of Health and Human Services on March 10 and made effective February 4, 2020, for certain medical products to be used against COVID-19.
Countermeasures include any vaccination, medication, device, or other item recommended to diagnose, prevent or treat a declared pandemic, epidemic or security threat.
The PREP Act, enacted on December 30, 2005, is the law which authorizes the CICP to provide benefits to individuals or the estates of individuals who sustain a covered serious physical injury as the direct result of countermeasures under a PREP Act declaration.
According to Menezes, the VICP is the better of the two programs because it provides more benefits and protections to individuals than does the CICP. (See comparison chart above.)
The Bar News filed a FOIA request with Health Resources and Services Administration, the agency responsible for administering both the VICP and the CICP, asking for records regarding any benefits paid for COVID-19 related injuries from these programs.
While there have been claims filed, according to the DICP, a records search conducted by the agency stated they have not compensated any COVID-19 related claims at this time.
Menezes believes the public has a right to know how these programs are being administered and that the issue is highly time sensitive. For many, the financial consequences of not receiving benefits, given the one-year statute of limitations could be catastrophic.
“If someone is hospitalized for months and he or she is trying to learn to walk again, how could that person file a claim in one year? A one-year statute of limitations is simply unjust,” she says. “I was appalled to learn that vaccine manufacturers are immune from any liability for the COVID-19 vaccine and that any injuries from the COVID-19 vaccine will not be part of the VICP.”
While most vaccines are administered as a public health necessity and very few people experience injuries, Menezes said there is no denying that there can “sometimes be very serious injuries from vaccines.”
“Regarding the COVID-19 vaccine, it’s horrible that the public is expected to gamble on these vaccines but if there is an injury, there is little available to help with an injury.”