Vaccine Injury Rights Frequently Asked Questions
What is the National Vaccine Injury Compensation Program?
On October 1, 1988, the National Childhood Vaccine Injury Act of 1986 (42 U.S.C. §§ 300aa-1 to 300aa-34) created the National Vaccine Injury Compensation Program (VICP). The VICP was established to guarantee that a sufficient number of vaccines were manufactured for the public, to stabilize vaccine manufacturing expenses, and most importantly, to provide an efficient forum for those who have suffered adverse effects from vaccines to obtain meaningful compensation. The VICP is a “no-fault” compensation program, which means that individuals only need to prove that the vaccine caused the alleged injury. No proof of a defective product is required.
Who are the main players in the VICP?
There are several main players that operate in the VICP:
Petitioner: This is the injured party.
U.S. Department of Health and Human Services (HHS): This is the entity that defends all vaccine-related claims and in the VICP, is more commonly called, the “Respondent”. This department is responsible for reviewing cases and issuing payment of claims.
U.S. Department of Justice (DOJ): The DOJ acts as the lawyers for HHS.
U.S. Court of Federal Claims: This is the Court where all cases are filed and it is located in Washington, D.C. The Court is composed of eight (8) special masters, who collectively form the Office of Special Masters or OSM, that are appointed by the judges on the United States Court of Federal Claims. One of the special masters serves as the “chief special master” of the VICP. The special master assigned to the case is responsible for the entire adjudication, both facts and law, of the case.
Where does the money to pay claims come from?
The National Vaccine Injury Compensation Program is funded by the Vaccine Injury Compensation Trust Fund and it compensates all vaccine-related injuries or deaths for covered vaccines administered after October 1, 1988. The Trust Fund is funded by a $0.75 excise tax on all vaccines that are recommended by the Centers for Disease Control and Prevention for routine administration to children. The excise tax imposed is based on the number of diseases that the vaccine is designed to inoculate against. For example, the measles, mumps and rubella vaccine, which is manufactured and administered to inoculate against all three diseases, is taxed at $2.25 per vaccine. Each influenza vaccine is taxed at $0.75 per dose. This tax is collected by the Department of the Treasury, which also manages the Trust Fund’s investments of the excise tax.
How much is in the Vaccine Trust Fund?
Approximately $3.8 billion, and growing.
Which vaccines are covered by the VICP?
The Vaccine Injury Table lists all of the vaccines that are covered by the Vaccine Injury Compensation Program (VICP). If a vaccine is not contained on the Vaccine Injury Table, then an injury that is allegedly caused by the vaccine is ineligible for compensation in the VICP. Vaccines that are listed on the Vaccine Injury Table are: tetanus toxoid vaccines (DTaP, DTP, DT, Td, or TT), pertussis vaccines (DTP, DTaP, P, DTP-Hib), measles, mumps and rubella vaccines (MMR or any variants), polio virus vaccine, Hepatitis A, Hepatitis B, Hemophilus influenza type b (Hib), Varicella, rotavirus, pneumococcal conjugate vaccines, seasonal influenza, meningococcal vaccines, and human papillomavirus (HPV) vaccines.
Is the shingles vaccine covered in the VICP?
No. The shingles vaccine is not covered by the VICP. The varicella (chicken pox) vaccine is covered though. Individuals who claim the shingles vaccine is the cause of their injury would have to file a civil suit outside of the VICP.
Are all pneumonia vaccines covered in the VICP?
No. Only pneumococcal conjugate vaccines are covered in the VICP: Prevnar 7 (PCV7), Prevnar 13 (PCV13), and Synflorix (PCV10). The most commonly given pneumonia vaccine, Pneumovax-23, is not covered by the VICP. Individuals who claim the Pneumovax-23 vaccine is the cause of their injury would have to file a civil suit outside of the VICP.
What is the time frame in which I have to file a case?
The statute of limitations in the VICP is very strict. To be eligible for compensation, claims must be filed within the following periods:
For injury claims: within 3 years after the first symptom or manifestation of onset or of the significant aggravation of the injury; or
For death claims: within 2 years of the death and within 4 years of the first symptom or manifestation of onset or of the significant aggravation of the injury from which the death resulted.
The statute of limitations cannot be tolled for any reason, even if the injured person is under the age of 18 or if they had no knowledge about the VICP.
Do I have to file my case in the VICP?
The short answer is yes. If your injury is from a vaccine covered by the VICP, then you must at least file a claim in the VICP first. The VICP was originally designed as a no-fault compensation program and the injured Petitioner was required to exhaust the VICP before attempting to file a civil suit against the manufacturer of the vaccine. Practically, if a petitioner did not receive a favorable ruling in the VICP, the petitioner could then remove his case from the VICP and file a civil action for a design defect claim. However, in 2011, the U.S. Supreme Court in Bruesewitz v. Wyeth., et al effectively made the VICP the sole forum to litigate vaccine injuries so long as the vaccines were accompanied by proper directions and warnings.
Do I really need an attorney, or can I file my own case?
If you have done your research, you will see that the VICP allows individuals to file their own cases. However, it is not recommended for many reasons. First, all attorneys’ fees and costs are paid separate and apart from any settlement you receive, so there is no monetary incentive to not retain a licensed vaccine attorney. Second, filing your own case may seem tempting, but navigating the VICP, the Court, the DOJ attorneys and the nuanced legal and medical issues is very daunting. Third, it is expensive to prosecute a case in the VICP from the filing fees, obtaining medical records, and securing expert reports. At Green & Schafle LLC, we front and cover all of these expenses on your behalf and then we are reimbursed by the Court at the end of the case.
In short, don’t do on your own what we can do on your behalf!
Can I hire my local attorney?
Likely not. In order to handle cases in the VICP, an attorney must be admitted to the United States Court of Federal Claims and they must possess the vast knowledge and intricacies of the VICP, the law, the medicine and science. Not every personal injury attorney has this specialized knowledge. In fact, there are very few vaccine attorneys nationwide. Be sure to ask whether your attorney actively practices vaccine law in the United States Court of Federal Claims. At Green & Schafle LLC, our partner, David J. Carney, Esquire, has been handling vaccine cases in the VICP for 9 years and is currently the Vice President of the Vaccine Bar Association, the national organization dedicated to representing those injured by vaccines.
Where is my case filed?
All cases, no matter where you live or where you were injured, are filed in the United States Court of Federal Claims in Washington, D.C.
Will I have to testify?
Likely not. While there is always is a chance that testimony from you will be necessary. There are no depositions in the VICP, however, if there is a factual issue in your case, you will be required to sign a written affidavit and potentially testify before a Special Master. However, these situations are often very rare. Most petitioners will go through their case without ever testifying before the Special Master.
What happens if I do have to testify?
If you are required to testify to resolve a factual issue (i.e. when your symptoms began, which arm you were vaccinated in, etc.), the testimony will usually be done via videoconference at a location nearest to where you live. The attorneys at Green & Schafle will prepare you well in advance so you know what to expect.
What is the Petitioner’s level of participation in the case?
Very little. At Green and Schafle, we ask that you cooperate with us to complete the initial paperwork and provide as much information as possible regarding your medical treatment so we can obtain all of your medical records for the years pertaining to your vaccine-injury. As mentioned previously, there are no depositions in the VICP, and no written discovery for you to answer.
Throughout the litigation, we simply ask that you continue to update us on any medical treatment you receive so we can continue to order your medical records until the end of your case.
What can I expect after my case is filed in the VICP?
After you file your case, there are three scenarios that will likely occur:
Concession: In a concession, HHS will review the medical records, scientific literature, and other documents and then ultimately determine that the petitioner is entitled to compensation, because the evidence meets the criteria of the vaccine injury table or because it is more likely than not that the vaccine caused the injury. Concessions are rare but they can occur in limited circumstances.
Negotiated settlement: In a negotiated settlement, the petitioner’s claim is resolved by way of a settlement with HHS at some point prior to the Entitlement Hearing. This can occur after your case is filed and reviewed by HHS, or after expert reports are filed, or any time thereafter.
Entitlement Hearing: If HHS does not concede that a petitioner should be compensated or if both parties do not agree to settle, the special master will hold an Entitlement Hearing. An Entitlement Hearing is the trial where the petitioner and all experts will testify on the issue of whether the vaccine caused the injury. This is a bench trial held before the assigned special master who makes rulings on the facts and the law. There is no jury. If the special master determines that Petitioner is entitled to compensation, then the parties will discuss compensation outside of the hearing. If the special master denies compensation, then either the case is over or the Petitioner may appeal the special master’s decision to the judges of the U.S. Court of Federal Claims.
What can I be compensated for in a settlement?
Pain and Suffering:
Physical pain and suffering is the pain of the plaintiff’s actual physical injuries. It includes not just the pain and discomfort that the claimant has endured to date, but also the detrimental effects that he or she is likely to suffer in the future as a result of the defendant’s negligence.
Mental pain and suffering results from the claimant's being physically injured, but it is more a by-product of those bodily injuries. Mental pain and suffering includes things like mental anguish, emotional distress, loss of enjoyment of life, fear, anger, humiliation, anxiety, and shock. Mental pain and suffering is basically any kind of negative emotion that an accident victim suffers as a result of having to endure the physical pain and trauma of the accident.
In the Vaccine Courts, the value of one’s pain and suffering is capped at $250,000.00. Therefore, the amount awarded for one’s pain and suffering is dependent upon the injury’s severity, duration and type of treatment, prognosis, and level of permanency.
A lost wages analysis includes analyzing how much time the injured individual lost from work for which he/she was not compensated by worker’s compensation or various disability plans. In order to legitimately make a claim for lost wages, it is imperative to evaluate the individuals tax returns to analyze if there was a loss of wages as a result of the alleged vaccine-injury. If the vaccine-injury will reasonably prevent the individual from earning similar wages in the future, then a claim for future lost wages can be made.
All medical expenses, not covered by health insurance, related to the vaccine-injury are reimbursable. This includes co-pays, hospital deductibles, prescription co-pays, hospital bills, etc. Having documentation of your receipts or Explanation of Benefits from your health insurance carrier is critical.
Future Medical Treatment:
In certain circumstances, an individual’s legal case will resolve before the injury has resolved. The individual will require future medical assistance in terms of surgery, additional treatments, or advanced medical or home care. In these situations, provided that they are supported by a medical or nursing expert, a claim for future medical treatment or accommodations can be claimed.
How does my attorney get paid?
After your case is resolved, your attorney will file an application for attorneys’ fees and litigation costs with the Court, which will determine how much your attorney gets paid. No attorneys’ fees or litigation costs are ever deducted from your settlement.
Will my medical bills be paid through the VICP?
As a part of your settlement, a claim for your outstanding medical bills, not covered by insurance, will be submitted for reimbursement. Documentation of your outstanding medical bills and expenses are required. If you have Medicaid, or a similar type of state-sponsored health insurance, there will likely be a lien asserted against your case. In such cases, the VICP will pay off the Medicaid lien.
How long will my case take from start to finish?
Every case in the VICP will vary in length. Due to the volume of cases in the VICP, most cases can expect to take two (2) years from date of filing until resolution if they proceed directly to settlement. If your case proceeds to an Entitlement Hearing, that time frame will increase. It is extremely important to retain a vaccine injury attorney to handle your case so that your case will proceed quickly and swiftly through the Court.
What type of resolution or settlement can I expect?
No case in the VICP is the same, even if they contain the same vaccine and the same injury. It is important to discuss the specifics of your case with your vaccine attorney who can educate you on the various compensation items that you can be eligible for.
If you or someone you know has been injured by a vaccine, please contact our attorneys immediately for a free consultation.
The information provided in this FAQ pamphlet was created and prepared by David J. Carney, Esquire, a partner at Green & Schafle LLC. David has been practicing vaccine law for 9 years where he has gain extensive experience representing individuals who have been diagnosed with Guillain-Barre Syndrome, acute disseminated encephalomyelitis (ADEM) transverse myelitis, encephalitis and polymyositis. In addition to routinely obtaining million-dollar settlements, David has been consistently successful in prosecuting shoulder injury (SIRVA) cases as a result of improperly administered vaccines. As a trial lawyer, David regularly advocates for his clients in the courtroom and at trial to give each of his clients a voice. David is an active member in the Vaccine Injured Petitioner’s Bar Association, the organization that advocates for the rights of victims who have been injured as a result of a vaccination. He currently serves as the Vice President of the Executive Board for the Bar Association for 2018-2019 term where he routinely interacts and meets with the Chief Special Master of the Vaccine Court, and representatives from the Department of Justice and Health and Human Services. In addition to his work as Vice President, David routinely lectures at the vaccine conferences and other legal conferences on vaccine-related topics.