A new Covid-19 vaccine injury table?

Here it comes, sometime in March, maybe.

In the late fall of 2022, several members of the US Congress sent a letter to Health & Human Services (HHS) Secretary Becerra asking for a specific vaccine injury table for COVID-19 vaccines. Congressmen Louis Gohmert, Bill Posey, W. Gregory Steube and Congresswoman Mary Miller sent a letter Nov 16, 2022 addressing the concern that a lack of a specific injury table shifts the standard of proof in determining compensation to become an unacceptable and unlawful additional burden on the injured.

The PREP Act declares that “the Secretary shall by regulation establish a table identifying covered injuries that shall be presumed to be directly caused by the administration or use of a covered countermeasure and the time period in which the first symptom or manifestation of onset of each such adverse effect must manifest in order for such presumption to apply.” 42 U.S.C. - 247d-6e(b)(5).

The current vaccine injury table being used to make decisions on vaccine injury claims is the SmallPox Vaccine Injury Table. This table was adopted by the Secretary of HHS back in August 2021. The table was created back in 2003. But why was this done?

Included in their letter to Secc’y Becerra, a very interesting question was asked. “Whether or not HRSA is using the SmallPox Vaccine Injury Table (that was published in the Federal Register on August 16, 2021) to measure and determine requests for benefits resulting from a COVID-19 vaccine and, if so, a justification for its use for such requests for benefits.”

I filed a FOIA back in early 2022 asking a similar question to the Secretary of HHS for the justification of adopting the SmallPox Vaccine Injury Table including emails, documents between Secretary’s office and other officials within HHS and HRSA, CDC, NIH and FDA. The FOIA reply from HHS determined that no documents or emails existed. My phone calls and emails to the specific members of Congress have gone unanswered. Congress Gohmert officially left January 2023.

In the SmallPox Vaccine Injury Table, myocarditis and pericarditis are included recognized for those who develop those conditions 0-21 days after vaccination. maybe that is the reason to adopt this specific table. Those two medical conditions were listed. The table for the NVICP for the traditional vaccines such as MME, DTaP, Influenza and others does not recognize myocarditis and pericarditis as a known medical injury.

Earlier I mentioned the date of the letter being November 2022. In the Secretary’s quarterly Advisory Commission for Childhood Vaccines (ACCV) held Dec 1-2, 2022, Kathleen Stratton from National Academy of Science, Engineering and Medicine announced that a committee was being formed to review medical literature and report back to the Secretary in March 2024. Maybe the Secretary heard the message from Congress.

Which brings us to today. Will any report from National Academies of Science, Engineering and Medicine (NASEM, the old IOM) be fairly developed? Who knows. The committee was hand picked. My FOIA requests for communications between committee members, from outside stakeholders, research material and literature reviewed have all gone unanswered.

Now let’s speculate on what may happen. If the report is accepted by the Secretary of HHS, the next step will be to move towards adoption of the table for COVID-19 vaccine injuries in the CounterMeasures Injury Compensation Program.

The Sec’y will have to publish his intention to adopt the table in the Federal Register. Public comment will be solicited. This procedure should take approximately 6-8 months to list comments and responses in the Federal Register. Some time after this, the Sec’y will then announce an adoption a specific COVID-19 vaccine injury table.

Now the question will be, will the injury table be adopted retroactively for all petitions filed in the CICP? That is a perplexing question that I have forwarded to several attorneys for their interpretation.

The opinion from most of the attorneys that I have spoken with agree the Sec’y of HHS does have the authority to make changes to the table including adopting new vaccines, definition changes and injury types and timing.

The Sec’y of HHS has previously changed the table in 1995 by removing Residual Seizure Disorder from the table from DPT vaccine. This moved hundreds of petitions from a table injury which would lead to a conceded compensable decision in the NVICP.

Not finished, the Sec’s of HHS would later would adopt a more restrictive definition of encephalopathy.

Some of you may remember the story of Hannah Bruesewitz. She was severely injured from a DPT vaccine. Her petition was dismissed. Parents filed a civil tort case in court. This case was appealed and finally made its way to the US Supreme Court. Hannah’s family exercised her right to reject the decision in the NVICP and file a lawsuit in court. Ironically, it was her case that decided at the US Supreme Court to prevent future petitioners from following in her steps.

If her petition was filed a year earlier, she may be been compensated in the NVICP. Because of this fundamental change in the vaccine injury table led to an US Supreme Court decision in February 2011 that led to the removal of suing vaccine manufacturers in state or federal court for product defects.

So what to do about this new injury table. If kept within the confines of the CounterMeasures Injury Compensation Program, those who are injured from a countermeasures such as the COVID-19 vaccine, there would be very little benefit.

The injured really do not have any chance for compensation. Currently, HRSA is rejecting nearly 98% of all petitions.

The compensation received is merely reimbursement of medical expenses that are not covered by private insurance or other means.

So there is no real benefit from the CICP. The only real compensation from the CICP are for death or lost wages capped at $50,000. So far, no petitions have been compensated for those benefits. At the same time, many of the injured are suffering, need real medical care.

But what if the COVID-19 vaccines are moved into the NVICP. The table would follow. That is a big if regarding the move but needs to happen soon.

Maybe then and only then, those injured can receive real compensation in the form of pain & suffering damages, the use of experienced attorneys and medical experts to testify on your behalf, plus a possible annuity to provide future medical care.

Keep Learning, Keep Challenging Yourself and always, always question authority.

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Wayne Rohde, author of 2 books on Vaccine Injury Compensation Programs in the US.