The National Vaccine Injury Compensation Program needs to be reformed, not eliminated

A pharma pressure group weighs in

In a recent Opinion article in STAT News, Dorit Reiss and Art Caplan argue the Vaccine Injury Compensation Program needs to be updated, not eliminated.

I agree.

However, their version of the current program is not accurate.

The opening sentence claims that Rep Paul Gosar wants to abolish the NVICP and he may have been partly influenced by claims from the Sec’y of HHS, Robert F. Kennedy Jr., that the program is broken.

Yes, the program is broken and no, Gosar wasn’t influenced by RFK Jr.’s comments. The bill introduced recently is the same bill that was introduced in a previous session of Congress. And no, Gosar does not want to abolish the Program. He wants parents and individuals to choose. File a petition in the NVICP or file a civil tort complaint seeking damages in court.

They write a couple of paragraphs about the NVICP as a no-fault program, petitioners have to prove a lot less than they would in a courtroom. That is true.

For those who continue to assert that removing liability of vaccine manufacturers by repealing the Act would somehow improve the vaccines, in my opinion, you are mistaken.

To remove legal liability and challenge the manufacturers in open court is a very daunting task. It is extremely difficult and steep mountain to climb.

To challenge manufacturers in court, finding a law firm that would invest time and resources to fight Merck or other manufacturers will be difficult and expensive.

That is why I stated the complete repeal of the Act is a non-starter.

What needs to be done is to reform the Program.

Expand the statute of limitations. This needs to happen. 3 years for injury when many of the alleged claims in today’s climate are autoimmune is not sufficient.

The vaccines of today are beasts. Some appear to be dangerous. We need to allow CDC and FDA to properly vet and test the vaccines. Not just rubber stamp the data given by manufacturers. That may be the best avenue to proceed for any future vaccines. Remove all state and federal mandates.

Several combine 4 to 8 antigens together. If a child does not experience seizures or other injuries commonly associated with childhood vaccines, they may develop other autoimmune medical conditions months or longer.

Reiss and Caplan, leaders among the Pharma pressure groups, use their standard verbiage that most claims are compensated via a settlement (Joint Stipulation) or awarded by concession or awarded decision. That is not the whole story. Just another half-truth, a common practice used by Dorit.

What they fail to mention since they are not following the workings of the Program, for the last decade, 95% of all compensated cases are for adult petitions. Only 5% of all compensated cases are for children. The Act was established for children injured by childhood vaccines. Now the program should be referred to as the Adult Vaccine Injury Compensation Program. The kids are being thrown under the bus. And this is one area that RFK Jr. wants to address.

They also mention one of their commonly used go to statements the following: “While people claiming vaccine harms need to start in VICP, for most claims, they can go to the civil courts by rejecting VICP’s decision, or if the decision is delayed for more than 240 days. In other words, while the manufacturers have immunity, it’s not complete.”

Their statement does not reflect the ability to sue for product defect, for injury was removed by The United States Supreme Court ruling in February 2011 in Bruesewitz v Wyeth Labs et al.

Injured petitioners can’t exit the program and sue manufacturers directly for injury in state or federal court. The section of the Act to allow petitioners to exit the Program existed from the very beginning and later removed by The United States Supreme Court.

One could speculate the reason why Reiss and Caplan did not include the Bruesewitz ruling could be the following:

1. They are unaware of the court’s ruling. This is highly unlikely.

2. They want their readers to continue their ignorance of this topic. Good possibility.

3. Or they continue their writing pattern of discussing only one side of the story. Another good possibility.

I do have to mention that petitioners can leave the Program, either by rejecting the decision or leaving after 240 days. No argument there.

However, the options for the injured are very narrowed. Yes, you can still sue the manufacturer. For fraud, not for injury. And good luck as a single petitioner taking on a manufacturer in court, only to be met with a judge willing to dismiss the suit.

Think Big Tobacco and how it was able to defend against all individual lawsuits. It took the states as whole to bring Big Tobacco to its knees.

It has taken years and several million dollars for those injured by the Gardasil vaccine to sue Merck for fraud. Not for the injury. Those cases are nowhere near a jury. Just trying to hang on via a federal judge order to dismiss. An appeal is pending. And the outcome is not expected for some time.

They conclude with the infamous closing that “the VICP was created primarily because litigation in the 1980’s led vaccine manufacturers to leave the market. Most of the claims they faced failed, but childhood vaccines were not very profitable, and defense litigation costs ate up any profit.”

That part is partially correct. They forget to mention that property casualty insurance companies who paid a large segment of civil penalties started to raise their insurance rates 10x or greater or drop the insurance to the manufacturers all together.

There is another part of this topic. Today, the vaccine market is extremely profitable, and many manufacturers enjoy monopolist markets for certain vaccines such as the MMR.

Yes, we ALL can agree that there are some severe shortcomings of the NVICP. And those areas need to be addressed. So why has no other White House Administration or Secretary of HHS been willing to address these areas?

For the first time, we are witnessing a Secretary of HHS have the desire, the passion, the courage and the knowledge to reform the Program.

So the question today, will the Pharma pressure groups, Pharma itself, the medical community be willing to help or will be continue to be obstacles in the road?

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Wayne Rohde, author of 2 books, The Vaccine Court - The Dark Truth of America’s Vaccine Injury Compensation Program and The Vaccine Court 2.0