Since 1988, the US government has paid $3.7 billion to over 4,150 individuals and families for injuries and deaths attributed to shots for flu, diphtheria, whooping cough, and other conditions. Though vaccines “remain one of the greatest success stories in public health,” Tracy Seipel reported, “for some Americans, rare side effects of inoculations have led to hardship, serious injury, and even death.”
As Anders Kelto reported on NPR’s All Things Considered, high-profile lawsuits against drug companies in the 1980s successfully charged that children immunized with the diphtheria-tetanus-pertussis (DTP) vaccine experienced adverse reactions, including seizures and brain damage, leading to at least two court settlements worth millions of dollars. In response, drug companies threatened to stop producing vaccines for the US market because litigation risks were too great unless the government provided them with “no-fault” protection. NPR quoted Anna Kirkland, a professor of women’s studies and political science at the University of Michigan: “There was a real fear that some of our childhood vaccines would no longer be available.”
In 1986, that fear led Congress to establish the little-known Office of Special Masters of the US Court of Federal Claims (known informally as the vaccine court) and the National Vaccine Injury Compensation Program. NPR reported that the court administers a “no-fault compensation program that serves as an alternative to the traditional U.S. tort system.” As Kirkland explained, the vaccine court served to “shield the vaccine makers from liability.” It also created a fund to compensate injured vaccine recipients, through a 75-cent surcharge on every vaccine dose.
As the NPR report explained, “Petitioners don’t have to prove that the immunization caused their condition—the court operates under a presumption of causation if the injury develops within a certain period of time.” To win a claim, petitioners must provide proof of developing a condition listed on a vaccine injury table. Settlements for conditions not included in the table require a higher burden of proof. But, as Seipel reported, the other restriction that petitioners face is filing within strict time limits. A petition must be filed within three years of the first symptoms, within two years of death, or within four years after the first symptom of a vaccine-related injury that resulted in death.
The problem of the time limit is two-fold. First, and most fundamentally, most people simply do not know about the government’s vaccine-injury compensation program, and they may not learn about it in time to petition. Second, in cases where parents allege that a vaccine has injured a child of theirs, the full extent of the injury may not be known until the child is older. As Anna Kirkland, the Michigan professor who has studied the vaccine court, told NPR, publicizing the vaccine court and injury compensation program creates a dilemma: Once critics see compensation settlements, they conclude that “vaccines are dangerous and you shouldn’t vaccinate.” If the court were to achieve greater visibility, especially regarding payouts to injured patients, the public might conclude that vaccines are more generally dangerous than significant research and evidence indicates.
Jessica Boehm of Cronkite News reported that vaccine information statements, which include information about both possible side effects and the vaccine compensation program, are provided to patients before each shot. However, few people read the fine print. According to Drew Downing, a lawyer who specializes in vaccine injury cases, “That’s really the only place that the vaccine program is really ever talked about.” As Seipel reported, other critics have noted that, when patients seek medical attention for an adverse reaction, they should be informed about the court system and compensation program.
Boehm’s Cronkite News report indicated that annual revenues of the Vaccine Injury Compensation Trust Fund significantly exceed the amount spent on injury claims through the compensation program. According to Government Accountability Office figures, since 2005 the vaccine court has compensated an average of 190 of the 466 claims it receives each year. During that time, the program’s annual budget has averaged $148.7 million. Some critics of the program, Boehm reported, question the program’s record of stringent compensation, given that it now maintains a $3.5 billion fund. Others contended that the large trust fund is a “safety net,” maintained by the program in the event that the vaccine court might rule to compensate thousands of families, as could have occurred in 2007 when the court began its Omnibus Autism Proceeding to determine whether two types of vaccines triggered autism in children. In 2009 the court ruled against the families, but if it had not the settlement would have required at least that much in compensation. Vaccine-injured victims are entitled to lost wages, medical and rehabilitation expenses, and up to $250,000 in compensation for pain and suffering. For vaccine-related deaths, compensation is limited to $250,000.
Since 2002, the Washington Post has published a handful of editorials, opinion pieces, and letters to the editor that have addressed the National Vaccine Injury Compensation Program. In 2009 it ran a front-page article on the vaccine court’s finding of no link between vaccines and autism in children. Coverage of the vaccine court and its injury program in the New York Times appears to have been limited to a single story from 1994, sourced from the Associated Press, on a new vaccine for whooping cough, which mentioned the program and compensation fund in passing.
Anders Kelto, “Vaccine Court Aims to Protect Patients and Vaccines,” All Things Considered (NPR), broadcast June 2, 2015, edited transcript, http://www.npr.org/sections/health-shots/2015/06/02/411243242/vaccine-court-aims-to-protect-patients-and-vaccines.
Tracy Seipel, “Vaccine Battles Call New Attention to Obscure Compensation Court,” Marin Independent Journal, August 2, 2015, http://www.marinij.com/article/NO/20150802/NEWS/150809969.
Jessica Boehm, “Vaccine Injury Fund Tops $3.5 Billion, as Patients Fight for Payment,” Cronkite News (Arizona PBS), May 8, 2015, http://cronkitenewsonline.com/2015/05/vaccine-injury-fund-tops-3-5-billion-as-patients-fight-for-payment/.
Student Researchers: Brittany Oldham, Dorsa Abyaneh, and Emiko Osaka (San Francisco State University)
Faculty Evaluator: Kenn Burrows (San Francisco State University)