Malpractice from Vaccine Injuries

Brien Roche

Malpractice-Vaccine Injuries and Federal Law

Vaccine injury claims due to government mandated vaccines can result in financial rewards to victims or their families. The government has established an inexpensive and efficient mechanism for keeping children safe from a number of different illnesses. These include polio, whooping cough, measles and other diseases through its vaccination program.

However, if your child is injured as a result of such a vaccine, then federal law governs any claims against the manufacturer and others .  You must first submit your claim under the National Vaccine Injury Compensation Program.  This is a no-fault program that was set up by the U.S. to provide compensation for those injured as a result of vaccine.

Malpractice-Vaccine Injuries and What You Need to Know

If you or your child is injured by a government mandated vaccine:

• • Vaccine injury claims must be filed within three years of the onset of the injury symptoms. The claim must be filed within two years of death. These time frames may be subject to change.
  • These claims are filed in the U. S. Court of Federal Claims. They are governed by well established rules wherein entitlement is established. If entitlement is established then damages are determined.
  • The Court determines whether or not the Plaintiff has presented a preponderance of evidence that the injuries were in fact caused by the vaccine.

Presumptions

• • There are some vaccine injury claims that are covered by what is called a presumption of coverage.  For instance, anaphylactic shock is presumed to have been caused by a vaccine if it occurred within a certain time after the vaccine was given.  There is a table within the vaccine statute that establishes which types of injuries are governed by such presumption.
  • In terms of awarding damages the Court looks at both past and future medical expenses. Also loss of wages and any other financial loss. The collateral source rule does not apply.  What that means is that if the injured party otherwise has insurance coverage then the vaccine program will not cover those expenses.

Attorney’s Fees and Filing Suit

• Likewise, attorney’s fees are governed by some strict standards.  The Court will award a reasonable fee based upon an hourly rate that may apply to the attorney.  As long as the claim was made in good faith with an adequate factual basis, the attorney’s fees can still be awarded even if the claimant is not deemed to be entitled to any damages.
• The claimant also has the right to decline any damage award. They may withdraw from the program and then file suit against the manufacturer.
• The pursuit of vaccine injury claims through the program requires a complete disclosure of the entire medical history of the claimant back to the time of birth.  The burden is on the plaintiff to submit all of those records for review.

The vaccine program was established by the U.S. as a means of providing reasonably prompt compensation for the claimant. At the same time it provides some limit on liability so as to encourage the development of such vaccines.

Malpractice-Vaccine Injuries and Immunity of Maker

Vaccine maker’s immunity was affirmed in February 2011 in the case of Bruesewitz v. Wyeth. In that case the Supreme Court dealt with the issue of whether U.S. law protects pharma from lawsuits by parents who claim that vaccines have harmed their children.  The Court sided with pharma. The Court stated that Congress found that making pharma immune was needed to insure that vaccines remain open to all. In other words the National Childhood Vaccine Injury Act of 1986, according to the Court, leaves complex judgments about vaccine design to the FDA and to the National Vaccine Program rather than to juries.

Preemption

This tendency to find pharma immune is no surprise.

In this case, Hannah Bruesewitz began to have seizures as an infant after receiving the DPT vaccine made by Wyeth.  The vaccine court ruled that Hannah had not proved that the vaccine harmed her.

The Court ruled that no vaccine maker could be made to pay for death or  injury from side effects where the vaccine was properly prepared and had proper directions and warnings.

Contact Brien Roche today for a free consult regarding your vaccine injury claim in Northern Virginia, Maryland, and Washington, DC.