Has the vaccine injury program failed U.S. children?

"The bottom line is that the Vaccine Injury Compensation Program was supposed to offer 'simple justice' to vaccine-injured children," says Nora Freeman Engstrom. "But it has largely failed to do so." (Credit: iStockphoto)

The safety net that Congress created to protect children who suffer from vaccine injury is not working as intended, a law professor charges.

Created by Congress in 1986 as the problem of vaccine injury hit crisis proportions, the Vaccine Injury Compensation Program, or VICP, is a no-fault compensation system housed within the US Court of Claims and funded by a 75-cent tax on each vaccine dose administered across the country.

“The bottom line is that the Vaccine Injury Compensation Program was supposed to offer ‘simple justice’ to vaccine-injured children. But it has largely failed to do so,” writes Nora Freeman Engstrom, professor of law at Stanford University.

Discouraging results

Vaccines are given to reduce the threat of common diseases, such as measles, chicken pox, smallpox, and polio, and they save the lives of tens of thousands of Americans each year. However, vaccines also cause a very small proportion of those inoculated to sustain serious and sometimes fatal injuries.

VCIP uses a no-fault alternative dispute resolution system for resolving vaccine injury claims. Known as an “alternative compensation mechanism,” it is similar to workers’ compensation funds or the September 11th Victim Compensation Fund in providing payment to injured individuals outside the traditional court system.

The vaccine fund has adjudicated more than 14,000 petitions for vaccine injury since its beginning in 1986. For a new paper, Engstrom analyzed nearly three decades’ worth of data concerning the program’s operation.

“The results are discouraging,” she says. “Despite initial optimism in Congress and beyond that such a fund could resolve claims efficiently and amicably, in operation the program has been astonishingly slow and surprisingly combative.”

Antagonistic proceedings

For example, Congress originally established a 240-day deadline for all adjudication decisions. But in reality, the average adjudication takes over five years. “This is years longer than similar claims resolved by court judgment or trial verdict within the traditional tort system,” Engstrom says.

The tone and nature of the experience is also disillusioning. Though claims within the system are supposed to be amicably resolved, in reality “the resolution of petitions is frequently antagonistic,” she says.

Even when children are found to be entitled to compensation, governmental lawyers have sometimes hassled petitioners over relatively piddling amounts. For example, in one case, a dispute arose whether a 14-year-old girl with profound mental retardation was or was not entitled to a $40 pair of high-top tennis shoes.

Perhaps as a result, the vaccine program has heavily relied on lawyers. Early on, some hoped that procedures would be straightforward and collaborative enough to make it unnecessary to hire counsel. But Engstrom discovered that petitioners need counsel—and often highly specialized legal help—to have any chance at successfully resolving their claims.

Lessons learned

The findings serve as a cautionary tale in two aspects. First, child vaccination rates in the United States are lower than they should be, Engstrom says, adding, “With the recent measles outbreak, the effects of this comparatively low vaccine rate seem to be coming home to roost.”

Originally, the vaccine compensation program was supposed to represent a simple and effective safety net that would encourage more parents to immunize their children. Applying that logic, she says: “If we want to convince more American parents to vaccinate their children, improving the VICP could help.”

Second, the findings shed light on the effectiveness of health courts and other options for resolving disputes beyond traditional courts, which are often suggested as possible solutions to medical malpractice litigation problems.

Engstrom calls health courts the “tort reform du jour.” In fact, legislation to enact health courts has been introduced in several state legislatures and both houses of Congress.

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Health courts would take medical malpractice cases out of the traditional court system and relocate them to a specialized venue. Health court supporters suggest that this relocation would promote faster, more predictable and less adversarial resolutions of disputes.

But Engstrom writes that the vaccine fund example is cause for great concern: “Moving cases outside the court system in no way guarantees that claim resolution will be fast, simple, or straightforward.

“Before we charge forward in creating new compensation systems, we ought to make sure we understand how our past experiments with tort reform have fared—and we’ve got to learn the sometimes bitter lessons that come from our past mistakes.”

Source: Stanford University