The National Vaccine Injury Compensation Program

How it works:

  • An individual files a petition with the U.S. Court of Federal Claims.

  • The U.S. Department of Health and Human Services (HHS) medical staff reviews the petition, determines if it meets the medical criteria for compensation and makes a preliminary recommendation. 

  • The U.S. Department of Justice develops a report that includes the medical recommendation and legal analysis and submits it to the Court.

  • The report is presented to a court-appointed special master, who decides whether the petitioner should be compensated, often after holding a hearing in which both parties can present evidence. If compensation is awarded, the special master determines the amount and type of compensation. The Court orders the U.S. Department of Health and Human Services to award compensation. Even if the petition is dismissed, if certain requirements are met, the Court may order the Department to pay attorneys' fees and costs. 

  • The special master's decision may be appealed and petitioners who reject the decision of the court (or withdraw their petitions within certain timelines) may file a claim in civil court against the vaccine company and/or the health care provider who administered the vaccine.

Additional details:

 

The NVICP was established through the National Childhood Vaccine Injury Act (NCVIA) on November 14th, 1986. The government recognizes certain vaccine-induced injuries, which appear on the “Vaccine Injury Table,” (linked below). Only injuries that show up within hours or days, thirty-days for some, can qualify. If families meet the exacting requirements for a table injury, they have a presumption of compensation. For non-table injuries, they must show causation based on a “preponderance of the evidence.” Petitioners have to file within three years of the first symptoms. The NVICP is funded by an excise tax of $0.75 per dose of vaccines sold. Awards are capped at $250,000 for death. Over 4.2 Billion dollars has been paid out since the beginning of the program.

This article from Children's Health Defense proposes reforms to this program. 

Risk utility testIn legal disputes regarding product liability, a risk-utility test is used to determine whether a product's design or warning is defective, thereby making the manufacturer liable for injuries caused by its product.

Althen Standard: Requires that the petitioner show by preponderant evidence that the vaccination brought about her injury by providing: (1) a medical theory causally connecting the vaccination and the injury; (2) a logical sequence of cause and effect showing that the vaccination was the reason for the injury; and (3) a showing of a proximate temporal relationship between vaccination and injury.

Daubert Standard: Under the Daubert standard, the factors that may be considered in determining whether the methodology is valid are: (1) whether the theory or technique in question can be and has been tested; (2) whether it has been subjected to peer review and publication; (3) its known or potential error rate; (4) the existence and maintenance of standards controlling its operation; and (5) whether it has attracted widespread acceptance within a relevant scientific community.

Discovery: A category of procedural devices employed by a party, prior to trial, to require the adverse party to 

disclose information that is essential for the preparation of 

the case and that the adverse party alone knows or 

possesses.

"Placing the burden on the vaccine injured child's family to conduct the very safety science which would have potentially prevented the child's injury in the first place is unconscionable, but, yet, how HHS operates" 

-Children's Health Defense

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