Vaccine Injuries and Federal Compensation Programs

The National Vaccine Injury Compensation Program (VICP) compensates people who have been injured by certain childhood vaccines. Eligible individuals (or their parents or legal guardians) can avoid litigation in the court system, and instead go through this more streamlined process. In this article, we'll:

• provide some background on the VICP
• explain VICP eligibility, the claim process, and available benefits, and
• discuss strict federal provisions for harm caused by COVID-19 vaccines.

Vaccine Injury Compensation Program Background

In the 1980s, expensive lawsuits over injuries caused by childhood vaccines acted as a deterrent that kept many companies from working to develop new vaccines, while families harmed by childhood vaccines spent large amounts of money and time in the court system. In response, Congress established the National Vaccine Injury Compensation Program (VICP), which offers a streamlined approach to compensate children and their families in the very rare instance that a vaccine causes injury. It is a no-fault system, paid for by a small tax on every vaccine.

How the VICP Works

To obtain compensation from the VICP, individuals file a claim in the U.S. Court of Federal Claims. A specially trained lawyer (called a "special master") hears the case. If the claim falls within the VICP guidelines, the special master orders payment from the Vaccine Trust Fund.

Claim Eligibility and Compensation

The following people may file a claim under the VICP:

• people who believe they've been injured by a covered vaccine
• the parent or legal guardian of someone who has been injured, or
• the representative of the estate of a person who died as a result of a covered vaccine.

The injury must have been caused by one of a number of specific vaccines (or a combination of specific vaccines, including:

• diphtheria, tetanus, pertussis (DTP, DTaP, Tdap, DT, TT or Td)
• hepatitis A and B
• human papillomavirus (HPV)
• influenza (TIV, LAIV)
• measles, mumps, rubella (MMR, MR, M or R)
• polio (OPV or IPV), and
• varicella (chicken pox) (VZV).

As new vaccines become available, they may be added to the program. For a current list of vaccines that are included in the VICP, visit the Health Resources and Service Administration's (HRSA) VICP website at https://www.hrsa.gov/vaccine-compensation/covered-vaccines/index.html.

What About the COVID-19 Vaccine?

When a public health emergency like the COVID-19 pandemic requires an expedited vaccine development process and a massive production effort, VICP's provisions are basically preempted by the Public Readiness and Emergency Preparedness Act (PREP Act). So once the U.S. Department of Health and Human Services declared the coronavirus outbreak a public health emergency, anyone who might be harmed by a newly-developed COVID-19 vaccine was barred from claiming compensation under VICP. Instead, the Countermeasures Injury Compensation Program (CICP) applies.

CICP provides immunity to drug makers in connection with the COVID-19 vaccine, unless the injured person can show that their harm resulted from the drug manufacturer's willful misconduct, and even then, any connection between the vaccine and the harm suffered must be established by clear scientific evidence.

Even when compensation is available under CICP, damages are typically limited to reimbursement of medical bills and $50,000 per year for lost income, and non-economic harm like "pain and suffering" won't be compensated. Learn more about CICP and how to file for benefits.

VICP Claims, Causation, and Proof

Anyone filing a claim under the VICP must prove that the injury was caused by the vaccine.

The VICP vaccine injury table lists and explains injuries and conditions that are presumed to be caused by vaccines, along with the time period that symptoms occur. If the first symptom of the injury occurs within the listed time period, it is presumed that the vaccine was the cause of the injury or condition (unless another cause is found). Find the most current version of the vaccine injury table at https://www.hrsa.gov/sites/default/files/hrsa/vaccine-compensation/vaccine-injury-table.pdf.

If an injury or condition is not on the table, it's still possible to prove that the injury was caused by the vaccine. This will require additional evidence like medical testimony and treatment records. An injury may also be eligible for coverage via a VICP claim if the vaccine caused an existing condition or illness to get significantly worse.

The vaccine injury must have:

• lasted for at least six months after the vaccine was given
• resulted in a hospital stay and surgery, or
• resulted in death.

How much a VICP claimant might receive depends on whether the vaccine caused injury or death. Get the latest compensation data at https://www.hrsa.gov/vaccine-compensation/data/index.html

How to File a VICP Claim

To start the process, file a petition (legal document) with the U.S. Court of Federal Claims. The petition should contain the following information:

• who was injured by the vaccine
• which vaccine caused the injury
• when the vaccine was given
• the city and State or country where the vaccine was given
• the type of injury
• when the first symptom of the injury appeared, and
• how long the effects of the injury lasted.

You must also include medical records and all other documents that show you meet the VICP requirements for claim eligibility.

There is a filing fee. If you can't afford the fee, you may be able to get it waived. (Call the Clerk of the U.S. Court of Federal Claims at 202-357-6400 for the current fee, and for information on fee waiver.)

The Rules of Court are very specific as to what you must do to file your claim (for example, you must send additional copies to certain federal agencies, attach the court cover sheet, and more). Check the HRSA's VICP website for details. If you don't comply with the Rules of Court, your claim will be rejected.

Most claimants hire an attorney to assist them in preparing and filing the petition (although this is not required). As long as you file the claim in good faith, you can get reimbursed for reasonable fees you pay to your attorney, even if your claim is denied. To get a list of attorneys who handle VICP claims, you can:

• contact the Clerk of the U.S. Court of Federal Claims at (202) 357-6400, or
• contact your State or local bar association.

Learn more about finding the right personal injury lawyer.

After Your Claim Is Filed

Once the VICP claim is filed, the Department of Health and Human Services (HHS) reviews the medical information and a Department of Justice (DOJ) attorney reviews the legal aspects of the claim. The HHS and DOJ reviews are combined into one report that is sent to the court and to the petitioner (the person filing the claim) or the petitioner's attorney.

A "special master" (a lawyer appointed by the judges of the court) decides if the claim will be paid—and if so, how much will be paid. The petitioner can accept or reject the special master's decision.

The petitioner or the HHS may appeal (ask for a review by a higher court) the special master's decision to a judge of the U.S. Court of Federal Claims, then to the U.S. Court of Appeals for the Federal Circuit, and, finally, to the U.S. Supreme Court.