After years and years of claims alleging that vaccines cause severe injuries in young children, at least half of all lawsuits filed in federal vaccine court today now claim a form of medical malpractice. In an exclusive report for NBC Washington, reporters Jodie Fleischer, Rick Yarborough and Jeff Piper write that about 50% of new vaccine lawsuits are linked to “shoulder injury resulting from vaccine administration,” a recognized side effect of improper vaccine administration.
Vaccine Court Sees Drastic Rise In Injury Lawsuits
The injury has “little or nothing to do with” what vaccine is being used, the reporters say. In most cases, NBC Washington continues, families claim the shot was administered too high on the arm, leading to a severe immune response that causes shoulder pain and lost range of motion.
Shoulder injury resulting from vaccine administration, or SIRVA, is most common with flu shots, which are generally administered in the arm’s deltoid muscle. Flu shots usually aren’t given to newborn babies; most children receive their first seasonal vaccination for the disease at six months.
Renee Gentry, director of George Washington University’s Vaccine Injury Law Clinic, says SIRVA has become incredibly common. “Vaccines have been an extraordinary contribution to society, but they’re not magic,” Gentry told reporters at NBC. “They are pharmaceuticals, and anyone can react to them.”
What Is Vaccine Court?
Established in 1986, the National Vaccine Injury Compensation Program was designed to provide parents and children a no-fault option for legal compensation in the wake of vaccine-related injuries.
At the time, the safety of vaccination was in doubt; high-profile injury cases captured headlines and carried the day in courtrooms across the country. Vaccine manufacturers were scared and, envisioning millions of dollars in jury verdicts against them, many pharmaceutical manufacturers stopped making vaccines entirely.
It was an untenable situation, because the strength of vaccination lies in herd immunity; a sufficient number of people must be inoculated against the disease for the rest of the population to be protected against its spread. Vaccination, federal regulators thought, must be widespread, but for that, we need a sufficient supply.
A No-Fault System For Vaccine Compensation
The federal vaccine court was created to solve the problem of liability in this contentious context. Instead of suing drug manufacturers for vaccine-related injuries in federal or state court, parents and injured adults are allowed to sue for compensation through the US Court of Federal Claims’ Office of Special Masters. In this court, parents and injured adults make claims against a special trust fund, which is financed through a 75% excise tax levied on all vaccine sales.
Parents are allowed to file claims on behalf of their children; verdicts are decided by a judge, not a jury. Available damages generally include medical expenses, legal fees, lost future earnings and up to a maximum of $250,000 in pain and suffering; wrongful death claims are normally capped at a $250,000 in financial losses.
$4B In Payouts Since 1986
The entire litigation process is governed by the Vaccine Injury Table – a catalogue of eligible vaccines and eligible injuries. The table outlines 16 common vaccines, from DTaP to HPV, then sets out the common vaccine-related injuries to which they have been linked.
Medical evidence that an infant received one of the covered vaccines, and experienced one of the covered injuries, is required to secure compensation.
Since the vaccine court was established, around 6,000 injury survivors have secured approximately $4 billion in compensation. The government’s trust fund for vaccine compensation awards is currently valued at nearly $3.7 billion.
Troubling Rise In SRVA Claims Drives Research
Vaccine lawsuits have skyrocketed in recent years. Since 2011, the number of claims involving vaccine side effects has increased by 500%. Yet Congress has thus far failed to ramp up the number of judges who are allowed to hear these cases.
The system is facing a serious backlog, according to Renee Gentry. “Right now,” Gentry says, “the earliest available hearing date is in 2020.” Much of the recent increase in vaccine claims is due to shoulder injuries, but as the reporters at NBC Washington learned, the government isn’t studying these cases to learn more. “No one keeps data on how often SIRVA happens, where it’s happening or even which shot-givers caused the injury,” the reporters write.
Docs Aren’t Learning About Their Mistakes
The Department of Health and Human Services has admitted as much, saying in a statement that it does not track data on SIRVA. Another problem? HHS doesn’t inform the doctors and nurses who administer these shots of their mistakes. In fact, it would very hard to do so, representatives for the Health Resources and Services Administration say.
The National Vaccine Injury Compensation Program protects both vaccine manufacturers and the medical professionals who administer the shots – doctors and nurses are not parties to the case. As a result, the general confidentiality rules that govern lawsuits prevent information on vaccine injuries from reaching the very shot-givers who could benefit from learning about their errors. To share the info, each vaccine lawsuit plaintiff would have to sign a release form.