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Vaccine Injury Compensation Program

Recently, the World rejoiced at the word of a development of a Covid-19 Vaccine in less than 10 months.  Ordinarily, it takes scientists about 10 years to develop a vaccine. By contrast, the pharmaceutical industry has worked toward emergency approval of Covid-19 vaccines in a matter of months. With 44,000 participants enrolled in clinical trials for the Pfizer–BioNTech vaccine and 30,000 in clinical trials for Moderna’s vaccine, common side effects that occur fairly soon after vaccination are likely to be identified. But this abbreviated development timeline provides little opportunity to identify potential adverse events such as joint pain, anaphylaxis, or neurologic conditions such as encephalitis, transverse myelitis, or Guillain–Barré syndrome that might occur in the longer term or that are rare enough that they probably won’t be discovered until the vaccine is distributed to a substantial portion of the public.

Normally, once the Food and Drug Administration (FDA) approves a vaccine and the Centers for Disease Control and Prevention (CDC) recommends it for children or pregnant women, injury compensation is available for any recipient through the National Vaccine Injury Compensation Program (VICP). The VICP covers the majority of vaccines administered in the United States.  Successful claims and attorneys’ fees are paid out of the Vaccine Injury Compensation Trust Fund, and they have exceeded $4 billion to date.  Since 2015, the fund has paid out an average total of $216 million to an average of 615 claimants each year.

The United States has a National Vaccine Injury Compensation Program as a no-fault alternative to the traditional legal system for resolving vaccine injury petitions.  It was created in the 1980s, after lawsuits against vaccine companies and health care providers threatened to cause vaccine shortages and reduce U.S. vaccination rates, which could have caused a resurgence of vaccine preventable diseases.  Federal tax dollars allocated by Congress at $110 million per year. This funding is supplemented from an excise tax of $.75 on every dose of covered vaccine that is purchased.

The declaration of a public health emergency by the Department of Health and Human Services in March 2020, however, resulted in exclusion of Covid-19 vaccine injuries from the VICP. This declaration triggered the Public Readiness and Emergency Preparedness (PREP) Act, a federal law that requires that all people injured by vaccines given as countermeasures during a declared emergency bring claims under only the Countermeasures Injury Compensation Program (CICP). The CICP is far less generous and less accessible than the VICP. It compensates people for only the most serious injuries, has a higher burden of proof than the VICP, has a 1-year statute of limitations after the date of vaccination, and limits awards for damages. For example, the CICP limits lost-income recovery to $50,000 for each year out of work and doesn’t include compensation for pain, suffering, or emotional distress.

As a result, people who are vaccinated during the declared public health emergency will be less likely to obtain compensation for injuries associated with Covid-19 vaccines than they would be for injuries from vaccines included in the VICP.  This exclusion for the Covid-19 vaccines from that compensation program are leaving recipients with no real backstop should they experience an adverse reaction.  The choice of taking a vaccine or not is a choice left to the knowledge each individual has.  However, Goldfinch Winslow simply hopes to educate our clients as to the legal components  of each situation they may face.

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