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  • Vaccine Injury Compensation












  • Vaccine Injury Compensation

    National Vaccine Injury Compensation Program -- Introduction

    The National Vaccine Injury Compensation Program (42 U.S.C. 300aa-10 through 17) (the "Program"), which is part of the National Childhood Vaccine Injury Act of 1986 (the "Vaccine Act"), establishes a compensation system for persons injured by routine pediatric vaccines. The Program recognizes and furthers the public interest in encouraging the availability and use of these vaccines by offering an alternative to traditional tort actions against vaccine administrators and manufacturers for alleged serious adverse reactions.

    The Vaccine Litigation Group in the Torts Branch of the Civil Division defends all claims brought against the Secretary of Health and Human Services under the Vaccine Act. These Vaccine Act cases are filed in the United States Court of Federal Claims by individuals claiming to have suffered injuries as a result of the receipt of certain specified vaccines. The cases routinely involve claims of catastrophic injuries or death. As a result, the cases present unique challenges and require diverse litigation skills of the Department of Justice trial attorneys who defend them.

    Disposition of Cases Under the Vaccine Program

    The Vaccine Act established within the United States Court of Federal Claims an Office of Special Masters. When a petition for vaccine compensation is filed, the chief special master assigns the case to a special master who makes an initial determination as to whether entitlement to an award should be granted. In many cases, a trial is necessary to decide the issue of entitlement under the Program. Although the court is located in Washington, D.C., the entitlement hearing is usually held in the state where the vaccine-injured party resides.

    After the special master enters the entitlement decision, either party may appeal the outcome to the United States Court of Federal Claims. The Court of Federal Claims reviews the decision and enters judgment. The decision of the Court of Federal Claims may then be appealed to the United States Court of Appeals for the Federal Circuit.

    A finding of vaccine-causation is made in one of two ways. The claimant may show vaccine-causation by proving a specified injury occurred within a specified time period following vaccination. This entitles the claimant to a presumption of vaccine-causation that can only be rebutted if we establish, by preponderant evidence, a cause for the alleged injury other than the vaccine. If the claimant cannot meet the requirements for a presumptively vaccine-related injury, the claimant must prove vaccine-causation under more traditional standards of proof used in tort litigation. In either situation, these cases require the development of detailed factual evidence and medical evidence from various medical specialties, such as neurology, pediatrics, immunology, rheumatology, epidemiology, infectious diseases, pathology and virology.

    Once a determination of vaccine-causation is made, the claimant is generally entitled to compensation for all future unreimbursable medical expenses related to the vaccine injury. For cases arising after the date of the Vaccine Act, claimants are also entitled to lost wages, pain and suffering up to a jurisdictional maximum of $250,000, and reasonable attorney's fees and costs. For cases involving vaccinations administered prior to the Vaccine Act's effective date, there is a cap of $30,000 on the combined items of pain and suffering, lost wages and reasonable attorneys' fees and costs. There is no provision for punitive damages. In all cases resulting in a vaccine-related death, a fixed payment of $250,000 is provided.

    Because of the severity of most vaccine injuries and the likelihood of lifelong future damages, vaccine cases require a complex economic analysis of the damage payments to be made to the injured party through lump sum payments, annuities, or reversionary trusts. The damages analysis includes interpretation of statutory compensation provisions and legal precedent for pain and suffering, medical care, residential care, attendant care, therapies, and lost wages. Consideration must also be given to other primary benefits to which the injured party is entitled such as private insurance, Medicaid, Medicare, and benefits under the Individuals With Disabilities Education Act (IDEA). Under the statute, these benefits may be offset against the award.



    This information came from a
    US DOJ online article.

    *** Any law, statute, regulation or other precedent is subject to change at any time ***

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    DEMPSEY, ROBERTS & SMITH, LTD.
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