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Volume XII, Number 146

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Most Vaccine Injuries Are Covered by the VICP – Except for the COVID Shots That We All Just Received

Not long after the widespread use of vaccines in the United States, drug makers began to be subject to increasingly successful and costly vaccine injury lawsuits. This engendered a growing concern that vital vaccine production and supply could be impaired. As a result, in 1986 Congress passed the National Childhood Vaccine Injury Act, which gave rise to the National Vaccine Injury Compensation Program (the “VICP”).[i]

The VICP is basically a no-fault, forced arbitration regime run by a combined bureaucracy of the Division of Injury Compensation Programs, Healthcare Systems Bureau, Health Resources and Services Administration, and Department of Health and Human Services. Under the VICP, the government takes a small portion of the payment for each vaccine administered and places those funds in the Vaccine Injury Compensation Trust Fund, utilized to address vaccine injury claims.

Covered Vaccines and Injuries.

The VICP is very specific as to which vaccines and respective injuries are covered – in fact, there is a handy table[ii] of covered vaccines and injuries. The list of covered vaccines and recognized related injuries (all of which are fairly serious) changes over time with input from the Advisory Commission on Childhood Vaccines. These decisions are also informed through the Vaccine Adverse Event Reporting System, co-managed by the Centers for Disease Control and Prevention and the Food and Drug Administration.

Right now, covered vaccines include: 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, MenB-FHbp, MenB-4C”), Pertussis (“DTP, DTaP, Tdap”), Pneumococcal conjugate (“PCV”), Polio (“OPV, IPV”), Rotavirus (“RV”), Rubella (“MMR, MR, R”), Tetanus (“Td”), Varicella (“VAR”). Certain popular vaccines are not covered, such as the shingles vaccine, ostensibly because it is almost exclusively an adult vaccine (as the name National Childhood Vaccine Injury Act implies).

Covered injuries range from injection site complications to paralysis and death. Again, each respective vaccination has its own recognized injuries, along with a window of time subsequent to vaccination in which those injuries must occur. Significantly, all vaccine injury claims must be filed within a strict specified limitations period.

Individuals claiming injuries from listed vaccinations must file a claim in United States Federal Claims Court, which is then reviewed by the Department of Health and Human Services and attorneys from the Department of Justice. Most claimants file their claim through an attorney and the claimant’s attorneys’ fees are provided for under the program.[iii]

VICP claimants can be awarded: past and future unreimbursable medical, custodial and rehabilitation care, and related expenses, without limits and based on the need for care; as much as $250,000 for actual and projected pain and suffering; lost earnings; as much as $250,000 as a death benefit for the estate of a deceased in the case of a vaccine-related death; reasonable attorneys’ fees and other legal costs.

But What About the COVID-19 Vaccine?

Now, we can proceed to the reason why you clicked on this article:

  • Question: Are the Covid-19 vaccinations and any related injuries covered by the VICP?

  • Answer: No.

The Secretary of Health and Human Services is empowered under the Public Readiness and Emergency Preparedness Act to invoke countermeasures during public health emergencies, including vaccines. The Covid-19 vaccinations have been declared just such emergency countermeasures, essentially providing limited immunity to drug makers. Accordingly, instead of falling under the VICP, Covid-19 vaccinations and related injuries are covered by the Countermeasures Injury Compensation Program (the “CICP”).

However, unlike the VICP, there is no official table yet for covered injuries related to the Covid-19 vaccination (though it is clear that the injuries have to be serious) and no established trust fund. In addition, a claim under the CICP is filed directly with the Secretary of Health and Human Services and there is no allowance for attorneys’ fees (so individuals will most likely be filing the claims without the help of a lawyer). Once the claim is filed, potential compensation is essentially limited to out-of-pocket, unreimbursed medical expenses and lost employment income benefits.[iv]

What Does All of This Mean for Me?

In a nutshell, if you have suffered a serious, recognized injury from one of many traditional vaccines, you should contact a lawyer and file a claim to seek recovery within certain relatively broad limits. If you have suffered a serious injury from a Covid-19 vaccine, you are basically on your own and should file a claim and seek recovery within certain extremely restricted limits. In either case, you could be totally barred if you do not adhere to the strict limitations periods imposed on vaccine injury claims.

Obviously, the status of vaccine claims, and particularly the evolving Covid-19 vaccines, are subject to change. Notwithstanding, there is currently no indication of any significant change in the treatment of vaccine injuries any time soon.

FOOTNOTES

 

COPYRIGHT © 2022, STARK & STARKNational Law Review, Volume XII, Number 24
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About this Author

Martin P. Schrama, Stark Law, Intellectual Property and Litigation Law Attorney
Shareholder

Martin P. Schrama is a Shareholder in Stark & Stark's Commercial Litigation, Mass Tort, Intellectual Property and Green Litigation Groups. Mr. Schrama has extensive experience litigating on both the trial and appellate levels of the federal and state courts of New Jersey and New York, as well as numerous other jurisdictions throughout the nation in a pro hac vice capacity. This experience also extends to regular practice before AAA, JAMS and various other alternate dispute resolution fora.

The primary focus of Mr. Schrama’s practice is...

609-895-7334
Stefanie Colella Walsh, Pharmaceutical Litigation Attorney, Stark Law Firm
Shareholder

Stefanie Colella-Walsh is a Shareholder and member of Stark & Stark’s Litigation, Insurance Coverage & Liability, Intellectual Property and Mass Torts Groups where she concentrates her practice in complex litigation with a focus in mass tort and pharmaceutical litigation. She also handles litigation related to nursing home negligence and abuse claims, elder abuse, and assisted living facility litigation.

Recently, Ms. Colella-Walsh was a member of the national trial team involved the first trial in the country of a TVT-Secur transvaginal...

609-219-7416
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