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Vaccine Injury Fund: Lessons From a Vaccine Lawyer-“Covered” Vaccines in the Court (and the DTaP)

March 13, 2017

In this Lessons From a Vaccine Lawyer post, I lay out the specific vaccines that are covered in the Vaccine Court.  When I say “covered,” I am referring to the vaccines that people have received that the Court/Legislature has deemed to be a vaccine that could have caused an injury.

First, let’s look at the history of the Vaccine Injury Compensation Program (“VICP”).  Back in the 1980s, children were injured by the DPT (Diptheria Pertussis Tetanus) vaccine.  It is known today as the DTaP, which is for a reason.

To get technical for a second, the little “a” in DTaP is for acellular, which is supposedly a weakened variation of the Pertussis portion of the vaccine.  The following is from the WHO (World Health Organization) website regarding the Pertussis vaccine.

“Two forms of vaccine are in use, the whole-cell vaccine (wP), and the acellular vaccine (aP). Whole-cell pertussis vaccines were developed first and are suspensions of the entire B. pertussis organism that has been inactivated, usually with formalin. Most wP vaccines are available in combination with diphtheria (D) and tetanus (T) vaccines, contain aluminum salts as an adjuvant and, thiomersal as a preservative. Immunization with wP vaccines is effective and the vaccine is relatively inexpensive, but immunization has been frequently associated with minor adverse reactions such as redness and swelling at the site of injection, along with fever and agitation. Local reactions tend to increase with age and the number of injections; wP vaccines are therefore not recommended for immunization of adolescents and adults.

To address the adverse reactions observed with the whole-cell vaccines, aP vaccines were developed that contain purified components of B. pertussis such as inactivated pertussis toxin either alone or in combination with other B. pertussis components such as filamentous haemagglutinin, fimbrial antigens and pertactin.”

So, the whole cell Pertussis were causing adverse reactions.  Thus, manufacturers made it weaker.  BUT, the public was very upset with their injured and dead children as a result of the Pertussis vaccine.  They began to sue in civil court.  And they were winning.

The manufacturers were getting hit with multi-million dollar lawsuits against them and they had to pay.  Eventually, they felt it enough in their pocket, that they went to the U.S. Government and asked for immunity from liability.  The manufacturers threatened that if they did not get civil immunity from liability, they were going to stop manufacturing vaccines in the U.S.

The U.S. Government complied with the manufacturers demands and through Congress, set up the following (this is taken from the National Vaccine Injury Center Website-a wealth of knowledge and resources):

“The National Childhood Vaccine Injury Act of 1986

NVIC’s co-founders worked with Congress on the National Childhood Vaccine Injury Act of 1986 (42 U.S.C. §§ 300aa-1 to 300aa-34). This historic law acknowledged that vaccine injuries and deaths are real and that the vaccine injured and their families should be financially supported and that vaccine safety protections were needed in the mass vaccination system. The law set up a federal vaccine injury compensation program as well as included legal requirements for vaccine providers to:

  • give parents vaccine benefit and risk information before their children are vaccinated;
  • keep written records of vaccine manufacturer names and lot numbers for each vaccination given;
  • enter serious health problems following vaccination into a child’s permanent medical record; and
  • report serious health problems following vaccination to the federal Vaccine Adverse Events Reporting System (VAERS)

The law preserved the right for vaccine injured persons to bring a lawsuit in the court system if federal compensation is denied or is not sufficient. By 2012, the U.S. Court of Claims had awarded over $3 billion dollars to vaccine victims for their catastrophic vaccine injuries, although two out of three applicants have been denied compensation. Below are links to the National Vaccine Injury Act of 1986 broken down into specific sections, as listed by the US Government Publishing Office. The law may also be viewed in its entirety on the US House of Representatives Office of the Law and Revision Council here.

Part 1–National Vaccine Program

  • Sec. 300aa-1  Establishment –  PDF | Text | MoreCollapse
  • Sec. 300aa-3  Plan – PDF | Text | More
  • Sec. 300aa-2  Program responsibilities – PDF | Text | MoreCollapse
  • Sec. 300aa-4  Repealed. Pub. L. 105-362, title VI, §601(a)(1)(H), Nov. 10, 1998, 112 Stat. 3285 – PDF | Text | More
  • Sec. 300aa-5  National Vaccine Advisory Committee – PDF | Text | More
  • Sec. 300aa-6  Authorization of appropriations – PDF | Text | More

Part 2–National Vaccine Injury Compensation Program

subpart a–program requirements

  • Sec. 300aa-10  Establishment of program – PDF | Text | More
  • Sec. 300aa-11  Petitions for compensation – PDF | Text | More
  • Sec. 300aa-12  Court jurisdiction – PDF | Text | More
  • Sec. 300aa-14  Vaccine Injury Table – PDF | Text | More
  • Sec. 300aa-15  Compensation – PDF | Text | More
  • Sec. 300aa-13  Determination of eligibility and compensation – PDF | Text | More
  • Sec. 300aa-16  Limitations of actions – PDF | Text | More
  • Sec. 300aa-17  Subrogation – PDF | Text | More
  • Sec. 300aa-18  Repealed. Pub. L. 100-203, title IV, §4303(d)(2)(B), Dec. 22, 1987, 101 Stat. 1330-222 – PDF | Text | More
  • Sec. 300aa-19  Advisor – PDF | Text | More

subpart b–additional remedies

  • Sec. 300aa-23  Trial – PDF | Text | More
  • Sec. 300aa-22  Standards of responsibility – PDF | Text | More
  • Sec. 300aa-21  Authority to bring actions – PDF | Text | More

subpart c–assuring a safer childhood vaccination program in united states

  • Sec. 300aa-25  Recording and reporting of information – PDF | Text | More
  • Sec. 300aa-26  Vaccine information – PDF | Text | More
  • Sec. 300aa-27  Mandate for safer childhood vaccines – PDF | Text | More
  • Sec. 300aa-28  Manufacturer recordkeeping and reporting – PDF | Text | More

subpart d–general provisions

  • Sec. 300aa-31  Citizen’s actions – PDF | Text | More
  • Sec. 300aa-32  Judicial review – PDF | Text | More
  • Sec. 300aa-33  Definitions – PDF | Text | More
  • Sec. 300aa-34  Termination of program – PDF | Text | More

All of this was set up and is still functioning today, with more and more Petitions filed in the Vaccine Court each year.  The question becomes, which vaccines are covered or accepted in the court as one that may have caused an injury?

For that information, the Act set up a Vaccine Injury Table.  This table lists all of the covered vaccines.  If the vaccine you received is one on the table and that vaccine caused you injury, then you may have a valid claim in Vaccine Court.

Here, in this hyperlink, is the Government Table:

https://www.hrsa.gov/vaccinecompensation/vaccineinjurytable.pdf

However, for a general description of which vaccines are covered, I have included this, which is also set forth on my website:

“The following list of covered vaccines is published by the U.S. Department of Health and Human Services.  The vaccines listed below are taken from the Vaccine Table that can be obtained from their website. Keep in mind that other requirements must be met in order to collect from the Vaccine Injury Fund.  Having received one of the listed vaccines is one element in proving your case.

Human papillomavirus (HPV) vaccines (such as Gardasil® and Cervarix®, which caused more than 60 deaths since 2006)

Vaccines containing tetanus toxoid (e.g., DTaP, DTP, DT, Td, or TT)

Vaccines containing whole cell pertussis bacteria, extracted or partial cell pertussis bacteria, or specific pertussis antigen(s) (e.g., DTP, DTaP, P, DTP-Hib)

Measles, mumps, and rubella vaccine or any of its components (e.g., MMR, MR, M, R)

Vaccines containing rubella virus (e.g., MMR, MR, R)

Vaccines containing measles virus (e.g., MMR, MR, M)

Vaccines containing polio live virus (OPV)

Vaccines containing polio inactivated virus (e.g., IPV)

Hepatitis B. vaccines

Hemophilus influenzae type b polysaccharide conjugate vaccines

Varicella vaccine

Rotavirus vaccine

Pneumococcal conjugate vaccines

Hepatitis A vaccines

Trivalent influenza vaccines

Meningococcal vaccines

Any new vaccine recommended by the Centers for Disease Control and Prevention for routine administration to children, after publication by the Secretary of a notice of coverage. (Now includes all vaccines against seasonal influenza (except trivalent influenza vaccines, which are already covered), effective November 12, 2013).”

If you have any questions regarding a potential vaccine injury, feel free to call Widman Law Firm, Vaccine Injury Attorney, for a free phone consultation. 732.829.3416.  Also visit www.widmanlawfirm.com.

 

 

 

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