LEGAL GUIDE
Written by attorney Astrid de Parry

Compensation for Vaccine Injuries

History of Vaccine Legislation

A dramatic increase in lawsuits filed in the 1970s alleged injuries to individuals, mostly children, caused by the diphtheria, tetanus and pertussis (DTP) vaccine. Consequently, companies that manufactured the vaccine either drastically increased their prices or stopped production of the vaccine altogether, creating a shortage of the DTP vaccine.

In 1986, Congress passed the National Childhood Vaccine Injury Act (NCVIA) to address the DTP vaccine supply shortage. The main goal of the NCVIA was to create the National Vaccine Injury Compensation Program (VICP). The program allows for those who have been injured or who have died from vaccines to be compensated, while limiting the liability of the manufacturing companies so that they continue to produce and research vaccines.

According to the Centers for Disease Control (CDC), the VICP covers all routinely recommended childhood vaccinations. Whether or not the injury or death is compensable depends on the Vaccine Injury Table. The table outlines the adverse events that can be caused by vaccines. The table can be found at the Department of Health and Human Services web page at:

www.hrsa.gov/vaccinecompensation/vaccinetable.html

How do I get compensation for injuries or death caused by a vaccine?

Pursuant to U.S. Code, individuals cannot bring an action against the vaccine administrator or vaccine manufacturer for greater than $1,000 without first availing themselves of VICP. The claim must be for an injury or death caused by a vaccine covered by the VICP.

To be compensated, a claim must be filed with the Court of Federal Claims in Washington, D.C. Once the claim is filed, a special master is then assigned to the case. The individual who files the claim is known as the petitioner. The Department of Health and Human Services (HHS) acts as the respondent, and is represented by the Department of Justice (DOJ). HHS reviews the petition and decides whether to dispute the claim or concede the vaccine was responsible. If HHS concedes, the next step is to determine the value of damages. If the agency does not concede, the special master conducts a hearing to determine whether the vaccine was responsible for the injury or death.

Do I need an attorney?

A claim can be filed with or without an attorney. It is important to note that the VICP provides reimbursement for attorneys’ fees and other legal costs where the petitioner is compensated, and may even reimburse in cases where the petitioner is not granted compensation.

If you decide to use the guidance of an attorney, keep in mind that to litigate vaccine cases the attorney must be certified to practice with the Court of Federal Claims.

How do I file a claim?

A claim is started by filing a petition to request compensation under the VICP.According to the Guidelines for Practice under the National Vaccine Injury Compensation Program,the petitioner sends one original and two copies of the claim along with medical records, other appropriate documents and $250.00 filing fee to the Court.

The petition should provide the respondent and the special master with a clear understanding of the petitioner’s claims. The DOJ should also be provided a copy of the petition for review and for HHS to review. The DOJ and HHS opinions are combined into one report that is sent to the special master and the petitioner, called the respondent’s report.

What does the special master do?

The special master will be actively involved in the proceedings. It is his or her job to make the process as efficient as possible. He or she will clarify each party’s positions, and work to quickly resolve the case.

What do I have to prove to be compensated?

You must prove:

  • The injury was sustained from a vaccine on the Vaccine Injury Table; and
  • The first symptom of the injury/condition (which must be listed on the table) occurred within the time period listed on the table; or
  • The vaccine caused the injury; or
  • The vaccine caused an existing illness to get worse.

If the petitioner can prove that an injury, condition or death occurred from a vaccine on the table within the required time, there is a presumption the vaccine is responsible for that injury or death. The respondent can try to prove that some other event was responsible to refute this presumption.

How much will I be paid?

It depends on whether your claim is for an injury or death caused by a vaccine. For an injury caused by a vaccine, you can be paid:

  • Past and future medical costs (no limit);
  • Pain and suffering (maximum of $250,000);
  • Lost wages; and
  • Attorneys’ fees and legal costs.

For a death caused by a vaccine, you can be paid:

  • Up to $250,000 as a death benefit for the estate of the deceased; and
  • Reasonable attorneys’ fees and other legal costs.

Other Resources

The Office of Special Masters provides guidelines and rules for practice under the National Vaccine Injury Compensation Program. Additionally, the VICP will provide an information packet detailing how to file a claim, criteria for eligibility, and the documentation required. The guidelines can be found at the following web site:

www.uscfc.uscourts.gov .

© 2012, Astrid de Parry, P.A.

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