Legal Remedies for Vaccine Injuries
The National Childhood Vaccine Injury Act of 1986 created a compensation program to help claimants who suffered from vaccines to purse damages. A party may file a petition for compensation in the Court of Federal Claims. The awards are paid out of a fund created by an excise tax on each vaccine dose. [1]
Who can file a claim?
“[A]ny person who has sustained a vaccine-related injury, the legal representative of such person if such person is a minor or is disabled, or the legal representative of any person who died as the result of the administration of a vaccine outlined in the Vaccine Injury Table may. . . . . . file a petition for compensation under the Program.”[2]
What vaccines are covered?
· Diphtheria (DTP, DTaP, Tdap, DT, Td, TT)
· Haemophilus influenza type b polysaccharide conjugate vaccines (Hib)
· Hepatitis A (HAV)
· Hepatitis B (HBV)
· Human papillomavirus (HPV)
· Seasonal influenza (Flu)
· Measles (MMR)
· Mumps (MMR, MR, M)
· Meningococcal (MCV4, MPSV4)
· Pertussis (DTP, DTaP, Tdap)
· Pneumococcal conjugate (PCV)
· Polio (OPV or IPV)
· Rotavirus (RV)
· Rubella (MMR, MR, R)
· Tetanus (Td)
· Varicella (AR)
For more detailed information, please check the vaccine injury table: http://www.hrsa.gov/vaccinecompensation/vaccineinjurytable.pdf.
Additional covered vaccines
“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.” Notices of coverage will appear in the Federal Register: https://www.govinfo.gov/app/collection/fr/.
Where was the vaccine administered?
In a state or territory of the U.S., unless:
1. person is a U.S. citizen serving abroad as a member of the Armed Forces or employee of the U.S. or is a dependent of such a citizen; or
2. the vaccine manufacturer was located in the U.S., and the person returned to the U.S. within 6 months of the date of vaccination. [3]
Severity of injury
To be entitled to get remedy, the claimant must
1. suffered the residual effects or complications of such illness, disability, injury, or condition for more than 6 months after the administration of the vaccine, or
2. died from the administration of the vaccine, or
3. suffered such illness, disability, injury, or condition from the vaccine which resulted in inpatient hospitalization and surgical intervention. [4]
Statute of limitations
In the case of a vaccine in the Vaccine Injury Table which is administered after October 1, 1988, if a vaccine-related injury occurred as a result of the administration of such vaccine, no petition may be filed for compensation under the Program for such injury after the expiration of 36 months after the date of the occurrence of the first symptom or manifestation of onset or of the significant aggravation of such injury.
A vaccine in the Vaccine Injury Table which is administered after October 1, 1988, if a death occurred as a result of the administration of the such vaccine, no petition may be filed for compensation under the Program for such death after the expiration of 24 months from the date of the death and no such petition may be filed more than 48 months after the date of the occurrence of the first symptom or manifestation of onset or of the significant aggravation of the injury from which the death resulted.[5]
How to determine your entitlement?
The petitioner has the burden of proof and must produce preponderant evidence of each element required by the law. The burden of proof depends on whether the case involves a Table injury or an off-Table injury, which will be elaborated below.
A Table case is one in which the injury sustained is listed in the Vaccine Injury Table for the vaccine alleged to be causal. The injury must manifest within the time frame specified on the Table for that vaccine and injury, and the nature of the injury must track the description listed in the “Qualifications and aids to interpretation” section of the Vaccine Injury Table 42 CFR § 100.3(c). If the petitioner meets all these conditions set in the table, the causation element required by the law is presumed. [6]
For Off-Table cases, petitioners must prove by preponderant evidence that a covered vaccine caused their injuries. Such proof will include the opinion of a qualified expert. Specifically, the petitioner needs to meet all three elements: (1) a medical theory causally connecting the vaccination and the injury; (2) a logical sequence of cause and effect showing that the vaccination was the reason for the injury; and (3) a showing of a proximate temporal relationship between vaccination and injury. [7]
Determining damages
There are four buckets from which the court could grant you the remedy:
· Unreimbursable Expenses
· Pain & Suffering
· Lost Wages
· Death Benefit
Past and future expenses
Compensation awards under the Program shall include:
1. Actual unreimbursable expenses incurred from the date of the judgment awarding such expenses and reasonable projected unreimbursable expenses which
(i) results from the vaccine-related injury for which the petitioner seeks compensation,
(ii) have been or will be incurred by or on behalf of the person who suffered such injury, and
(iii)(I) have been or will be for diagnosis and medical or other remedial care determined to be reasonably necessary, or
(II) have been or will be for rehabilitation, developmental evaluation, special education, vocational training and placement, case management services, counseling, emotional or behavioral therapy, residential and custodial care and service expenses, special equipment, related travel expenses, and facilities determined to be reasonably necessary.
2. And, subject to section 300aa-16(a)(2)(statute of limitation above), actual unreimbursable expenses incurred before the date of the judgment awarding such expenses which--
(i) resulted from the vaccine-related injury for which the petitioner seeks compensation,
(ii) were incurred by or on behalf of the person who suffered such injury, and
(iii) were for diagnosis, medical or other remedial care, rehabilitation, developmental evaluation, special education, vocational training and placement, case management services, counseling, emotional or behavioral therapy, residential and custodial care and service expenses, special equipment, related travel expenses, and facilities determined to be reasonably necessary.[8]
The amount of any compensation for residential and custodial care and service expenses under subsection (a)(1) shall be sufficient to enable the compensated person to remain living at home. [9]
Past and future lost wages
In the case of any person who has sustained a vaccine-related injury after the age of 18 and whose earning capacity is or has been impaired by reason of such person’s vaccine-related injury for which compensation is to be awarded, compensation for the actual and anticipated loss of earnings determined in accordance with generally recognized actuarial principles and projections. [10]
In the case of any person who has sustained a vaccine-related injury before the age of 18 and whose earning capacity is or has been impaired by reason of such person’s vaccine-related injury for which compensation is to be awarded and whose vaccine-related injury is of sufficient severity to permit reasonable anticipation that such person is likely to suffer impaired earning capacity at age 18 and beyond, compensation after attaining the age of 18 for loss of earnings determined on the basis of the average gross weekly earnings of workers in the private, non-farm sector, less appropriate taxes and the average cost of a health insurance policy, as determined by the Secretary.[11] For reference, please visit https://www.uscfc.uscourts.gov/lost-wages.
Past and future pain and suffering and emotional distress
For actual and projected pain and suffering and emotional distress from the vaccine-related injury, an award not to exceed $250,000.[12]
Death benefit
In the event of a vaccine-related death, an award of $250,000 for the estate of the deceased. [13]
Life planner
Once it appears that a case may move to damages or settlement and that the future medical needs of the vaccine will be long-term or substantial, consideration should be given to a life care planner.
A life care planner may work with the parent, treating physician, doctors, schools, or others to work on the injured person’s future care and therapy needs, including attendant and long-term living arrangements, education plans, structural change to the residence, and all other matters.
The life care plan typically presents costs in present value. The special master has recognized 4% as an annual growth rate for medical expenses. If the petitioner does not accept the special master’s assumed rate of inflation, the petitioner should retain an economist and notify the court.
Once the life care plan has been approved by the special master, the special master shall have the authority to order all or part of a compensation award to be made in the form of an annuity rather than a lump sum. This would ensure the vaccinee receives the benefit as long as he or she lives, eliminating the need to determine life expectancy. [14]
Shoulder injuries cases as examples
1. Roth v. Secretary of Health and Human Services [15]
Damages
$59,046.30, representing $58,000.00 for actual pain and suffering, plus $1,046.30 for past unreimbursed expenses.
Facts
Petitioner received the flu vaccine in the left shoulder on October 20, 2017, and had severe pain in her arm at the injection site the following day. She had an x-ray on Dec. 27, 2017. She completed 21 PT sessions between Dec. 4, 2017, and Jun. 28, 2018. She was able to resume recreational activities
Ruling
The petitioner endured 21 physical therapy sessions, which she described as "really, really painful." However, she did not seek treatment from an orthopedist, an MRI was never obtained, no cortisone injection was given, and no surgery was recommended. All of the above suggests that the appropriate award, in this case, is "below median."
"I find that the re-aggravation argued by Respondent was not an injury separate from Petitioner's SIRVA. In my experience adjudicating such claims, a person with a SIRVA injury will often have sensitivity when attempting to engage in activities of daily living, including employment, that might make the injury a bit worse at times. I therefore find that all 21 physical therapy sessions were treatment for Petitioner's SIRVA."
"I note that Ms. Roth stopped treating her shoulder pain, other than with home exercises, and was largely recovered within eight months of vaccination, as she admits in her affidavit. All of these factors will play a role in the amount awarded for Ms. Roth's pain and suffering." Citing to Knauss.[16]
2. Welch v. Secretary of Health and Human Services[17]
Damages
$222,844.07 consisting of $210,000.00 representing a fair and appropriate amount of compensation for Petitioner's actual pain and suffering and $11,234.94 in actual unreimbursable expenses, and $1,609.13 in the past lost wages.
Facts
The petitioner received a flu vaccine on Sept. 29, 2016, and suffered shoulder pain after. Petitioner's treatment took four years, including three surgeries, three cortisone injections, multiple MRIs, over four dozen physical therapy sessions, continued home exercises, and prescription medications. Further, during the first temporal stage of her injury, Petitioner was caring for her terminally ill husband and retired early from her job as an addiction counselor, in part due to the pain and emotional distress from the SIRVA.
Ruling
The Court held this case is most analogous to Schoonover (constant pain both at rest and with activities, rating it at eight out of ten. The pain did not improve following multiple steroid injections, and even after two surgeries, the Petitioner continued to have pain)[18], and Lawson (Petitioner underwent three surgeries, seven cortisone injections, four rounds of physical therapy, six MRIs, and continues to suffer pain. Her pain, however, was intermittent in character, and she also suffered from some comorbidities that may not have been related to her SIRVA).[19]
"Like Schoonover and Lawson, the severity of Petitioner's injury, plus her overall therapeutic course, including the number of interventions over four years, support a higher than normal award for pain and suffering." "Petitioner underwent three surgeries, three steroid injections, dozens of physical therapy sessions, and numerous MRIs."
The chief special master did not award future pain and suffering, noting that it did not appear Petitioner's level of disability was the same as some petitioners. He also stated that her ability to work and earn income was not affected, although she was treated unfairly by her employer over seeking treatment.
[1] See Bruesewitz v. Wyeth LLC, 131 S. Ct. 1068, 1070 (2011).
[2] 42 U.S.C. § 300aa-11(b)(1)(A).
[3] 42 U.S.C. § 300aa-11(c)(1)(B).
[4] 42 U.S.C. § 300aa-11(D).
[5] 42 U.S. Code § 300 aa-16.
[6] 42 CFR § 100.3.
[7] See Office of Special Masters, United States Court of Federal Claims, Guidelines for Practice under the National Vaccine Injury Compensation Program, at 45-47 (April 2020), https://www.uscfc.uscourts.gov/sites/default/files/Guidelines-4.24.2020.pdf; Althen v. Sec'y of Health & Human Servs., 418 F.3d 1274, 1278 (Fed. Cir. 2005).
[8] 42 U.S. Code § 300aa–15.
[9] Id.
[10] Id.
[11] Id.
[12] Id.
[13] Id.
[14] See Office of Special Masters, United States Court of Federal Claims, Guidelines for Practice under the National Vaccine Injury Compensation Program, at 58-60 (April 2020), https://www.uscfc.uscourts.gov/sites/default/files/Guidelines-4.24.2020.pdf.
[15] Roth v. Sec'y of Health & Hum. Servs., No. 19-0944V, 2021 WL 4469920, at *1 (Fed. Cl. Aug. 31, 2021).
[16] Knauss v. Sec'y of Health & Human Servs., No. 16-1372, 2018 WL 3432906 at * the 7 (Fed. Cl. Spec. Mstr. May 23, 2018) (awarding $60,000 for pain and suffering following a SIRVA wherein petitioner sought treatments three months post-vaccination, underwent 15 physical therapy sessions, received a steroid injection, and ultimately reported a 94 percent recovery).
[17] Welch v. Sec'y of Health & Hum. Servs., No. 18-74V, 2021 WL 1795205, at *1 (Fed. Cl. Apr. 5, 2021).
[18] Schoonover v. Sec'y of Health & Human Servs., No. 16-1324V, 2020 WL 5351341, at *1 (Fed. Cl. Aug. 5, 2020).
[19] Lawson v. Sec'y of Health & Human Servs., No. 18-882V, 2021 WL 688560, at *1 (Fed. Cl. Jan. 5, 2021).