The National Childhood Vaccination Injury Act of 1986 (NCVIA), as amended, created the Vaccine Injury Compensation Program (VICP). Congress created the VICP primarily to protect our nation’s vaccine supply. In the 1980’s, public attention was focused on the allegation that vaccines were causing injuries to children. Many parents sued vaccine manufacturers for alleged injuries. The few vaccine manufacturers in existence at that time were on the verge of going out of business because of lawsuits. Due to the threat to the nation’s health, Congress enacted the NCVIA.
The Vaccine Injury Compensation Program is essentially a “no-fault” program. Congress created a trust fund from which individuals suffering from vaccine-related injuries or death are awarded damages, if the vaccine that caused the injury is covered and falls within the parameters listed on a table. The trust fund is funded by a tax on each vaccine administered. The VICP provides persons allegedly injured by a listed vaccine with an alternative and specialized remedy for compensation; shifts financial liability from vaccine manufacturers to the trust fund; and preserves the nation’s vaccine supply by protecting manufacturers from the potential of perpetual litigation and liability.
The Department of Health and Human Services is the defendant in vaccine-related cases, taking the place of the manufacturers. The Department of Justice defends the trust fund from individuals who cannot establish injury by a vaccine. The Office of Special Masters, created under the NCVIA as part of the U.S. Court of Federal Claims, adjudicates vaccine injury claims filed pursuant to the VICP.
The lynchpin of the VICP is the vaccine injury table. The table lists those vaccines that are recommended by the Centers for Disease Control and Prevention for routine administration to children.
A person that alleges a vaccine-related injury has three years from discovery of the injury to file a claim. If the petitioner can demonstrate receipt of one of the listed vaccines and has a corresponding injury that occurred within the onset period listed on the table, then a presumption of causation exists. No further evidence related to causation is necessary.
The VICP also allows parties to file a claim who believe they have been injured by a listed vaccine, but whose injury does not comply with the requirements of the table (either by injury or onset, or both). But, in these cases the petitioner must prove causation by a preponderance of the evidence, as in traditional tort cases.
If causation is established either by presumption or proof, there is a determination of damages made by a special master. The statute allows for attorneys’ fees and costs to be paid as long as the petitioner can establish that the claim was filed with reasonable belief and in good faith. So, most petitioners’ attorneys are compensated, regardless of whether they win or lose. Damages available are medical and rehabilitative expenses, pain and suffering and lost wages. Petitioners are required to present medical evidence relating to their injury and the type of care needed. If a petitioner is dissatisfied with the result, he may appeal to the U.S. Court of Federal Claims. The Court of Claims will reverse the special master’s decision only if it is found to be arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law. A further appeal to the Federal Circuit is possible.
Although individuals alleging vaccine-related injuries or death can still file lawsuits in state and federal courts, that number has drastically decreased since the inception of the VICP. This is due to the relatively swift and uncomplicated determination of damages in appropriate cases.