As Featured in The Penn Law Journal, Vol. 51, Iss. 2, Art. 1
Susan Lee L’95
As a Preventive Health Measure for the upcoming months, the Centers for Disease Control and Prevention (CDC) recommends getting the influenza vaccine. Imagine after receiving an influenza vaccine, you immediately experience searing pain in your shoulder. Unable to lift your arm, a doctor diagnoses you with deltoid bursitis or shoulder injury related to vaccine administration (SIRVA). For over six months, you experience this pain and are unable to perform daily living activities like getting dressed and driving without assistance.
In the United States, vaccine injury compensation is available under the National Childhood Vaccine Injury Act (Vaccine Act). Congress proposed this legislation thirty years ago, yet most individuals I have encountered, including physicians and attorneys, have never heard of the Vaccine Act. The United States Department of Health and Human Services (HHS) administers the vaccine injury compensation program. Within HHS is the CDC, the government agency responsible for approving and regulating vaccines.
If you do decide to file a vaccine injury claim in the U.S. Court of Federal Claims the respondent is HHS who is legally represented by Department of Justice attorneys in the proceedings. The Vaccine Act removed vaccine manufacturers as parties to the proceedings. Originally, the purpose of the Vaccine Act was to avoid time-consuming and costly litigation. The proceedings are conducted in a non-traditional legal setting with a unique set of legal rules. Unlike other personal injury lawsuits, special masters preside over the “administrative” proceedings where there are no juries. Additionally, the Federal Rules of Civil Procedure and Federal Rules of Evidence do not apply.
In addition to SIRVA, HHS lists other compensable vaccine injuries as Guillain-Barré Syndrome (GBS), transverse myelitis, brachial neuritis, acute disseminated encephalomyelitis, chronic inflammatory demyelinating polyneuropathy, arthritis,idiopathic thrombocytopenic purpura,myalgia, encephalopathy, hearing loss, optic neuritis, anaphylaxis, shingles, systemic lupus erythematosus and other
autoimmune and neurological disorders.
In 2010, special masters presided over approximately 434 filed cases in the calendar year. Last year the approximate number of filed cases rose to 945. Because of the high volume and increasing number of filed vaccine injury claims the office of the special masters (OSM) created a special processing unit (SPU) in July 2014. The SPU is a type of alternative dispute resolution tool. Currently, there are eight special masters, and their dockets are overloaded. In May 2016, the OSM anticipated 1,200 cases for 2016. As of March 31, 2016, in the SPU the approximate breakdown of cases was: 63% for SIRVA; 27% for GBS; 4% for brachial neuritis; and 2% for intussusception. As of August 1, 2016, the OSM awarded $172,507,137.63 to 535 claimants under the program.
With the rising number of vaccine injury claims, my first recommendation is to increase the number of special masters from eight to sixteen. It is an easy solution for eight inundated dockets. I am confident the government can budget for more special masters from the approximately $3.4 billion in the vaccine injury compensation fund.
My second recommendation is to extend the statue of limitations. The current statute of limitations is three years from the date of injury. This time frame is too short. Long-term effects of vaccination on the body remain unknown. It is an area bereft of knowledge. Lacking scientific knowledge and ignorant of rights afforded to vaccine recipients under the Vaccine Act, too often, the statute of limitation expires so potential claimants miss out on receiving possible damages for their injuries.
Lastly, I would recommend an increase in the pain and suffering amount. The cap on pain and suffering is $250,000, and this amount has not changed since the effective date of the Vaccine Act on October 1, 1988.
These three recommendations are no-brainers especially because vaccine injury compensation is supposed to be just, and Congress wished to error on the side of generosity when creating the Vaccine Act. Until the creation of the special processing unit, petitioners experienced claims dragging on for years that were contentious with an undesirable outcome of parsimonious compensation awards, if any amount at all.
Although the creation of the SPU has resulted in compensation for 94% of the claims, vaccine injury compensation can be an arduous process. While SPU cases usually involve the influenza vaccine not all claims fall under the SPU because the Vaccine Act covers other vaccines. For non-SPU cases, the proceedings resemble personal injury litigation but without the typical court rules, defendant, judge and jury. As a result, I have provided three steps in the right direction. Change for this program is long overdue. The only way to make these changes is to get Congress to amend the Vaccine Act. I urge you to educate yourself about this unknown program and get in frequent contact with your Congressional representative. Advocate for a more just program so that it does what it was originally designed to do—get money quickly and
easily to those who are suffering from vaccine injuries.
Susan Lee is a consultant to Focus for Health.