Consumer Law

Autistic Children Having a Very Bad Day

By Andy Hoffman

As many of you know, yesterday, a special court ruled against three families who claimed vaccinations had led to their children?s autism.  While we can?t claim any real expertise on the scientific merits of the three cases litigated, we do know something about the vaccine court process that gave rise to yesterday?s decisions. 

The ?special? vaccine court that decided the case, which was presided over by Kung Fu-sounding figures called ?special masters,? was set up by Congress in 1986 as part of the National Vaccine Injury Compensation Program (VICP), which took away the right to jury trial against drug companies for families with children injured by vaccines, in exchange for which should be a ?no-fault" system of compensation.  But as Center for Justice & Democracy has written, the process has become a sham:

Critics contend that the process is heavily weighted against the injured parties, the  process takes too long, and the Secretary has removed too many injuries from the table.  ? Although originally proposed as a no- fault model that would be efficient and provide for quick compensation, many argue that the Program has been co-opted by political forces and turned into a victim?s nightmare. ?  Once a claim is removed from the table [of covered injuries], the element of no-fault is also removed.  The claimant is then left with the frustrating task of litigating fault in an administrative setting without the full  procedural safeguards of civil courts to guide the litigation.

While appealing these decisions may be difficult, other families may decide to sue the drug companies directly.  (The law allows this ?if their complaint has been pending before the vaccine court for more than 210 days.?)  As one lawyer put it, ?suing a pharmaceutical company would require them to prove not just that the vaccines caused the autism, but that the corporation was at fault. But that might not be much different than the current setup.?  Yes, we tend to agree!

Meanwhile, in California, a class-action lawsuit as been filed by parents with autistic children, to try to get giant health insurer Kaiser Permanente to treat or pay for treatment of autistic kids.  (Kaiser says  ?such treatments are not medical in nature and should be provided outside the coverage of a health-care plan.?)    This is a nationwide problem, which some states are trying to fix and lets hope they do.

Full post as published by ThePopTort on February 13, 2009 (boomark / email).