Consumer Law

Supreme Court Hears Case About Vaccine Court and its Failures

By Joe Consumer

In the early 1980s, parents across the nation began filing lawsuits against vaccine manufacturers and health care providers after their children suffered harmful side effects from the DTP (diphtheria, tetanus, pertussis) vaccine.  Pharmaceutical companies responded with a threat ? they would stop making vaccines unless federal lawmakers shielded them from liability. 

So in 1986, they did.  Congress passed a law that forces victims of vaccine-related injuries or death out of the tort system and into an administrative "no-fault" compensation scheme run by the federal government, called the ?Vaccine Court."

Though Congress intended claims to be handled ?quickly, easily and with certainty and generosity,? the Vaccine Court has failed in every respect.

For example,  HHS?s removal of covered injuries over the years has morphed the Vaccine Court into an increasingly fault-based system, requiring costly and time-consuming causation hearings, and a long time to adjudicate claims ? but without the protections of the civil justice system for victims.

In a November 18, 2008 statement, National Vaccine Information Center (NVIC) co-founder and President Barbara Loe Fisher told HHS?s Advisory Commission on Childhood Vaccines how contentious the program had become:

What I heard most often when speaking with parents and plaintiff?s attorneys was that the compensation process is filled with a ?mean-spiritedness? and a growing hostility on the part of DHHS, Justice and U.S. Court of Claims officials toward plaintiffs, their families, experts and attorneys...  [T]here certainly is a sense that parents feel their children are pawns in a political tug of war that compels those in government responsible for administering the compensation program to protect the reputation of the current vaccine system at all costs ? even if it means denying compensation to vaccine victims in order to limit the numbers of children acknowledged by government as having been harmed by vaccines being promoted by government.

You can see it in the stats: 13,546 petitions have been filed since the program began, yet only 2,503 awards. 

So along comes Hannah Bruesewitz and her family.  Hannah, who suffered a series of seizures within hours of receiving a DTP vaccine in 1992 when she was six months old, is among the many victims denied recovery.  Hannah, now a teenager, continues to suffer from seizure disorder, is non-verbal, non-communicative and needs round-the-clock care.  When Hannah was denied compensation under the federal program, her parents filed a lawsuit against the vaccine maker, Wyeth, in state court, alleging that the company could have made a safer vaccine.  Today, the U.S. Supreme Court is hearing her case, and will decide if state lawsuits like hers, alleging a design defect, can even go forward - or did Congress decide to immunize all vaccine manufactures, no matter what. 

As the New York Times reports today,

Ms. Bruesewitz?s parents have contended in court papers that the vaccine?s manufacturer, which is now a part of Pfizer, knew at the time that their daughter was immunized that there was a safer version of the D.T.P. vaccine but did not produce it. The company rejected that contention, and [l]ower court judges have ruled that her claims are barred by the federal Vaccine Act.  As a result, Ms. Bruesewitz, who lives with her family in Pittsburgh and requires specialized care, has not received any compensation.

 ?What we want and are concerned about is to make sure that the safety of vaccines in this country is constantly enhanced,? Mr. Bruesewitz said.

What's also clear is that the Vaccine Program has not provided justice for many injured victims and their families, as it was designed to do. 

Full post as published by ThePopTort on October 12, 2010 (boomark / email).