The National Childhood Vaccine Injury Act also abbreviated as NCVIA, was enforced in the year 1986. The main purpose behind the Act is to provide compensation to people who are/were injured by certain cases. The Act is also responsible for eliminating potential financial liability of vaccine manufacturers due to vaccine injury claims.[1]
Now, the VICP or The National Vaccine Injury Compensation Program was borne out of the NCVIA Act. The VICP is a no-fault alternative to the traditional tort system. It provides compensation to people found to be injured by certain vaccines. Even in cases in which such a finding is not made, petitioners may receive compensation through a settlement. The VICP was also established after lawsuits against vaccine manufacturers and healthcare providers threatened to cause vaccine shortages and reduce vaccination rates. The Program began accepting petitions (also called claims) in 1988.”[2]
What are the Covered Vaccines?
COVID-19 vaccines are covered countermeasures under the Countermeasures Injury Compensation Program (CICP), not the National Vaccine Injury Compensation Program.[3] “The Public Readiness and Emergency Preparedness Act (PREP Act) authorizes the CICP to provide benefits to certain individuals or estates of individuals who sustain a covered serious physical injury as the direct result of the administration or use of covered countermeasures identified in and administered or used under a PREP Act declaration. The CICP also may provide benefits to certain survivors of individuals who die as a direct result of the administration or use of such covered countermeasures. The PREP Act declaration for medical countermeasures against COVID-19 states that the covered countermeasures are:
- any antiviral, any drug, any biologic, any diagnostic, any other device, any respiratory protective device, or any vaccine manufactured, used, designed, developed, modified, licensed, or procured:
- to diagnose, mitigate, prevent, treat, or cure COVID-19, or the transmission of SARS-CoV-2 or a virus mutating therefrom; or
- to limit the harm that COVID-19, or the transmission of SARS-CoV-2 or a virus mutating therefrom, might otherwise cause.
- a product manufactured, used, designed, developed, modified, licensed, or procured to diagnose, mitigate, prevent, treat, or cure a serious or life-threatening disease or condition caused by a product described in paragraph (a) above.
- a product or technology intended to enhance the use or effect of a product described in paragraph (a) or (b) above; or
- any device used in the administration of any such product, and all components and constituent materials of any such product.”[4]
In addition to this, “Covered Countermeasures must be ”qualified pandemic or epidemic products,” or ”security countermeasures,” or drugs, biological products, or devices authorized for investigational or emergency use, as those terms are defined in the PREP Act, the Federal Food, Drug, and Cosmetic Act, and the Public Health Service Act, or a respiratory protective device approved by National Institute for Occupational Safety and Health (NIOSH) under 42 CFR part 84, or any successor regulations, that the Secretary of the Department of Health and Human Services determines to be a priority for use during a public health emergency declared under section 319 of the Public Health Service Act.”[5]
Why is Covid-19 not covered under the VICP?
The simple answer to this is, a big No. Here’s why: “The Secretary of Health and Human Services is empowered under the Public Readiness and Emergency Preparedness Act to invoke countermeasures during public health emergencies, including vaccines. The Covid-19 vaccinations have been declared just such emergency countermeasures, essentially providing limited immunity to drug makers. Accordingly, instead of falling under the VICP, Covid-19 vaccinations and related injuries are covered by the Countermeasures Injury Compensation Program (the “CICP”). However, unlike the VICP, there is no official table yet for covered injuries related to the Covid-19 vaccination (though it is clear that the injuries have to be serious) and no established trust fund. In addition, a claim under the CICP is filed directly with the Secretary of Health and Human Services and there is no allowance for attorneys’ fees (so individuals will most likely be filing the claims without the help of a lawyer). Once the claim is filed, potential compensation is essentially limited to out-of-pocket, unreimbursed medical expenses and lost employment income benefits.”[6]
HOW TO GO ABOUT THIS?
- A petition must be filed in the U.S. Court of Federal Claims,
- The petition then will be reviewed in order to check whether you qualify for compensation or not and accordingly a preliminary proposal will be made.
- Then a report is made on the same which contains medical and legal analysis and is submitted in the court of law.
- In the court of law, naturally, both the sides are given opportunity to ascertain facts and evidence’s and A special court master who then decides whether compensation should be handed out to Petitioner or not. What kind of compensation and how much is also decided by him.
“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.” (7)
In the case of Cedillo v. Secretary of Health and Human Services, the Court held: “Under the National Vaccine Injury Compensation Program (hereinafter the “Program”), compensation awards are made to individuals who have suffered injuries after receiving vaccines. In general, to gain an award, a petitioner must make a number of factual demonstrations, including showings that an individual received a vaccination covered by the statute; received it in the United States; suffered a serious, long-lasting injury; and has received no previous award or settlement on account of the injury. Finally–and the key question in most cases under the Program–the petitioner must also establish a causal link between the vaccination and the injury. In some cases, the petitioner may simply demonstrate the occurrence of what has been called a “Table Injury.” That is, it may be shown that the vaccine recipient suffered an injury of the type enumerated in the “Vaccine Injury Table” corresponding to the vaccination in question, within an applicable time period following the vaccination also specified in the Table. If so, the Table Injury is presumed to have been caused by the vaccination, and the petitioner is automatically entitled to compensation, unless it is affirmatively shown that the injury was caused by some factor other than the vaccination. § 300aa-13(a)(1)(A); § 300aa-11(c)(1)(C)(i); § 300aa-14(a); § 300aa-13(a)(1)(B).”[8]
The National Childhood Vaccine Injury Act of 1986, as amended, created a unique mechanism for compensating persons injured by vaccinations. [9] “The National Vaccine Injury Compensation Program (the “VICP” or the “Program”) (42 U.S.C. §§ 300aa-10 et seq.) is an alternative to traditional products liability and medical malpractice litigation for persons injured by their receipt of one or more of the standard childhood vaccines. Eligible claimants can recover compensation for vaccine injury-related medical and rehabilitative expenses, for pain and suffering, and lost earnings. By protecting the Vaccine Trust Fund against claims by those who have not suffered a vaccine-related injury, the Office of Vaccine Litigation helps to preserve the Fund for future eligible claimants. Claimants may also recover reasonable attorney’s fees and costs, and the Program also permits attorney fee awards to be made when a claim is otherwise denied, as long as it was filed in good faith, and with a reasonable basis. “A significant, positive result of the Program is that costly litigation against drug manufacturers and health care professionals who administer vaccines has substantially decreased. Although an individual who is dissatisfied with the Court’s final judgment has the option to file a lawsuit in State or Federal court, few lawsuits have been filed since the Program began. The supply of vaccines in the U.S. has stabilized, and the development of new vaccines has markedly increased.” [10]
[1] REAGAN SIGNS BILL ON DRUG EXPORTS AND PAYMENT FOR VACCINE INJURIES - The New York Times (nytimes.com) [2] About the National Vaccine Injury Compensation Program | HRSA [3] Frequently Asked Questions | HRSA [4] Ibid 3. [5] Supra 3. [6] COVID Vaccine Injuries Not Covered by VICP (natlawreview.com) (7) National Vaccine Injury Compensation Program | HRSA [8] Hastings-Cedillo.pdf (uscourts.gov) [9] Vaccine Injury Compensation Program (justice.gov) [10] Ibid.
