Vaccine injuries may be rare. When they do occur, there's a set of rules that apply. Lommen Abdo has prepared this brief guide to assist you when determining how and when to pursue an apparent injury resulting from a vaccination.
National Vaccine Injury Compensation Program (NVICP)
The NVICP (the Act), established by Congress in 1986, is a no-fault program to compensate persons injured by receiving certain vaccines while relieving vaccine manufacturers from the potential burden of costly product liability claims from vaccine injuries. The program is administered by the Department of Health and Human Services (DHHS). All claims are filed with the United States Court of Federal Claims where they are reviewed and decided by Special Masters appointed by the Court.
Compensation Funded by Surcharge on Vaccines
The NVICP is funded through a surcharge on each vaccine dose sold, which is paid by the vaccine manufacturer. In cases where death resulted from the receipt of a vaccine, the amount of compensation is capped at $250,000. When the vaccine-injured person is alive, the Special Master will determine the amount of compensation for actual past and expected future non-reimbursed expenses directly related to the vaccine injury. The award also may include compensation for pain and suffering and emotional distress, as well as impaired earning capacity. The Act provides for recovery of attorney fees and costs in bringing the petition.
Healthcare Provider’s Role in Recognizing an Adverse Event
While vaccine-related injuries are rare, when they occur the symptoms presented are often difficult to link back to a vaccination because they may mimic those of another disorder. To help guide the healthcare provider, the DHHS has developed a Vaccine Injury Table (www.hrsa.gov/vaccinecompensation/table.htm) that lists certain adverse events that are presumptively associated with covered vaccines if the first symptoms or manifestation of onset of that injury occur within certain prescribed times. These injuries include anaphylaxis or anaphylactic shock, brachial neuritis, encephalopathy or encephalitis, chronic arthritis, thrombocytopenic purpura, vaccine-strain measles viral infection, paralytic polio, vaccine-strain polio viral infection and intussusception.
In addition, some vaccines have been linked to several disorders, including:
• Chronic immune demyelinating polyneuropathy (CIDP)
• Acute demyelinating encephalopathic myopathy (ADEM)
• Guillian-barre syndrome (GBS)
• Other demyelinating central nervous system disorders or peripheral nervous system disorders
Other injuries or adverse events, not specifically identified by the Act, may be associated with the receipt of a vaccine listed on the table. These are referred to as "off-table" injuries. The Act does not recognize an automatic presumption of cause-effect in such injuries or adverse events. The person making such a claim will need medical evidence that the injury was "caused-in-fact" by the vaccine in question.
Vaccines Covered by the Program
The Vaccine Injury Table identifies the vaccines for which compensation is available, including:
• DTaP, DTaP-Hib, DT
• DTP, P, DTP/Polio combination
• Hemophilus influenzae type b vaccines
• Hepatitis A vaccines
• Hepatitis B antigen-containing vaccines
• Measles, Mumps, Rubella (MMR) or any vaccine containing any of those components
• Pneumococcal conjugate vaccines
• Polio Vaccines (live and inactivated)
• Rotavirus vaccine
• Td or Tetanus Toxoid
• Trivalent influenza vaccines (injectable and nasal spray)
• Varicella vaccine
A complete listing of vaccines covered by the Act can be found at www.hrsa.gov/vaccinecompensation/table.htm.
Adults and Children Can Be Affected
Because of recurring publicity surrounding vaccine-related injuries, one might assume that only children are affected by adverse reactions to selected vaccines. However, adults also may present with adverse reactions that should be investigated and diagnosed when debilitating symptoms occur within the specified time limits following a vaccination. For example, a former firefighter developed rheumatoid arthritis following a HepB vaccination required by his fire department.
VAERS Report and NVICP Claim Separate Actions
Submitting a report to the Vaccine Adverse Events Reporting System (VAERS) is NOT the same as filing a claim under the NVICP. VAERS and NVICP are two separate distinct programs. The NVICP Act requires all medical providers to report adverse events to receipt of vaccines to the VAERS. This system is run by the FDA and CDC and is a means for them to gather statistics on adverse vaccine events from the front line providers. To obtain a VAERS adverse incident report form call 800-822-7967.
Who May Bring a Claim?
Any person who has sustained a vaccine injury, the legal representative of such person if the person is disabled or a minor, or the legal representative of any person who died as the result of the administration of a covered vaccine may bring a claim. To be eligible to file a claim, the effects of the person’s injury must have:
1. lasted for more than six months after the vaccine was given; or
2. resulted in a hospital stay and surgery; or
3. resulted in death.
All claims for compensation under the Act must be brought within 36 months of the date of the first symptom of injury, the manifestation of onset of injury, or of the significant aggravation of a prior condition because of receiving a covered vaccine. A petition must be filed with the Court of Federal Claims in Washington D.C. Medical records and other pertinent information regarding the injury claimed must be filed with the petition. A petitioner may choose to represent themselves or may elect to have an attorney who is admitted in the Court of Federal Claims represent them.
For more information on the specific information required to file a claim, you may contact:
| National Vaccine Injury Compensation Program Parklawn Building Room 8A-46 5600 Fishers Lane Rockville, MD 20857 800-338-2382 www.hrsa.gov/vaccinecompensation.com |
or |
U.S. Court of Federal Claims 717 Madison Place NW Washington, DC 20005 202-357-6400 |
Sheila A. Bjorklund, JD, RN, PHN
Sheila Bjorklund brings an extensive background in health care administration as well as direct patient care to her practice of law. She concentrates her practice in litigation, including professional liability and professional licensure issues as well as other issues of health law.
Ms. Bjorklund represents individuals before the Federal Vaccine Court who are believed to be injured by vaccines. She also has served as a member of the Petitioner's Steering Committee (PSC) for the Omnibus Autism Proceeding within the Vaccine Court. The Petitioner's Steering Committee pooled resources to better prosecute these claims. Ms. Bjorklund serves on the Executive Committee of the PSC and co-chairs the legal subcommittee.
We would be pleased to answer any questions you may have about the services of our Vaccine Litigation attorneys. Any questions may be directed to:
In Minnesota and Wisconsin:
Sheila Bjorklund at 612-336-9312 or sheila@lommen.com.