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The National Childhood Vaccine Injury Act: a chance for families.


A Chance for Families

The National Childhood Vaccine Injury Act, Public Law 99-660, is intended to solve problems which arise from compulsory immunization of pre-school children. While vaccines have curbed many childhood diseases, there is an unpredictable and serious danger to the very small percentage of children who have adverse reactions to immunization.

Vaccine-related injuries have been the source of terrible family tragedies. Before the Act, injured children or their families had no resort but medical malpractice or product liability lawsuits, in an attempt to fund the care needed by many of the victims of these injuries. Often, such suits resulted in no finding of legal liability, and the victim received no compensation.

Even when there was a recovery, the expense and complexity of the litigation commanded huge expenditures from doctors, drug companies and the families of the victims. There was a danger that vaccine production might be stopped and that pediatric medicine might suffer.

Congress has undertaken to balance the competing interests of victims, doctors, drug companies and the public. The Act provides for recovery awards to victims, funded by Congress and by a tax on the vaccines.

There are seven vaccines, given in various combinations, for which recovery may be claimed. These are Diptheria, Pertussis (whooping cough), Tetanus, Polio, Measles, Mumps and Rubella. The time after vaccination when the first symptoms appear determines whether causation must be proven. In addition, the ill effects must last for more than six months before a claim may be filed.

The "Vaccine Injury Table" below lists a wide range of disorders thought to be caused or significantly aggravated by vaccinations. The table provides time limits for the onset of symptoms. If the case fits the time limit, causation is presumed. For example, the table prescribes three days for onset of seizure disorders caused by DPI shots, 30 days for paralytic polio caused by polio vaccine. Even if a symptom is not listed in the table, parents may still file.

If the victim suffers symptoms within the limits prescribed in the Vaccine Injury Table, only proof of independent causation could defeat the claim. There is no requirement for legal proof that the vaccine "caused" the injury. Since the aggravation of existing conditions is also compensible under the Act, it will be rare when "Table" injuries are uncompensated.


On January 25, 1989, the United States Claims Court issued procedural rules for the Act. The U.S. Department of Health and Human Services has hired doctors to review medical records, and the U.S. Department of Justice has two full-time attorneys representing the Secretary of Health and Human Services.

The Court has hired eight "Special Masters," quasi-judicial officials, to oversee settlement conferences and hold hearings where necessary. After holding a hearing, the Master will recommend factual and legal rulings to the United States Claims Court Judge assigned to the case. The Judge will review the record and enter a judgement. This process is intended to take no more than one year.


October 1, 1988 is the "effective date" of the compensation section of the Act. For vaccinations received before October 1, 1988, this date begins a two-year "statute of limitation." Any claim for vaccination injuries which occurred before October 1, 1988 must be filed by September 30, 1990.

Recovery in pre-October 1, 1988 cases is limited to $30,000 for pain and suffering, emotional distress, attorney's fees and costs incurred in making the claim. In addition, children injured before the effective date may be awarded future lost earnings (after age 18) and the cost of:

"...rehabilitation, developmental evaluation, special education, vocational training and placement, case management services, counseling, emotional or behavioral therapy, residential and custodial care and service expenses, special equipment, related travel expenses, and facilities determined to be reasonably necessary..."

The amount of this future care awarded will be reduced to "prevent value." That is, money payable in the future is reduced by an amount which would represent interest and inflation.

For death resulting from a vaccination before October 1, 1988, there is a $250,000 lump sum award.


Only 3,500 claimants can recover for pre-October 1, 1988, injuries. If funds are used up before claims are paid, no more claims will be paid unless Congress appropriates more money. Only about 100 claims have been filed. Nevertheless, it is probably unwise to delay filing a claim. There is no limit to the "age" of these claims. We are aware of two currently pending claims involving vaccinations received in the early 1950's.


For vaccinations received after October 1, 1988, the rules are more generous and less complicated. The statute of limitations -- the time after which claims are barred -- is 36 months after onset of symptoms related to inoculations administered after October 1, 1988. A 24-month statute of limitations governs death claims, beginning on the date of the death related to a vaccination received after October 1, 1988.

In the event of revisions which expand the Vaccine Injury Table, claims for the newly included injuries must be made within eight years of injury or death.

Death damages are $250,000 for post-October 1, 1988, vaccine injuries. Awards for injuries not resulting in death can include the present value of future care, and up to $250,000 can be awarded for pain and suffering and emotional distress. Victims may be awarded lost wages over the age of 18. There is no cap on attorney's fees and costs, but they must be reasonable.

Claimants may also recover actual past unreimbursed expenses for special care and education as in pre-October 1, 1988 cases.


The Act and the Rules of United States Claims Court are set up to allow people to proceed without a lawyer. Because the United States Claims Court sets attorney's fees, which are paid from Congressional appropriations of the Vaccine Injury Trust Fund, victims, in most cases, would be well advised to seek legal assistance.

Once a claim has been filed, additional evidence must be developed to form the basis for a monetary award. Experts may be contacted to help establish medical, educational and rehabilitational needs, costs of long-term care, and associated costs. It is important to establish life expectancy, because an award for future costs is dependent upon how long the child will survive.


Although there are some exceptions, the claimant must have received the vaccine in the United States or a trust territory. If the injured person is a U.S. citizen serving in the Armed Forces or a U.S. employee or dependent, he may recover if he received vaccine manufactured in the United States.

The injury must result in unreimbursed expenses of more than $1,000, unless the injury resulted in death. No prior award or settlement can have been collected. No person may seek recovery under the Act and pursue a civil action at the same time. New suits may not be filed without first making a claim under the Act.

Those who believe they might pursue a claim for a vaccine-related injury, should check the Vaccine Injury Table. It may be helpful to take the Table to your doctor because the requirements, though very specific, are phrased in medical terms and can be difficult for a layman to understand without medical guidance. Further, the Table is not exclusive, and a medical opinion is necessary to see if other injuries were actually caused by the vaccine.

Because the Act contemplates the possibility of recovery for injuries proven to have been actually caused by vaccine, although outside the strict language of the Vaccine Injury Table, a person with such a claim should probably seek both legal and medical assistance.

After a claimant has gone through the United States Claims Court procedures, he has the right to begin a civil suit. But the claimant must advise the United States Claims Court within 90 days after the judgment, that he rejects the result. Generally, most victims will want to accept the judgment of the United States Claims Court because the procedure is non-adversarial, and not as emotionally taxing or costly as a civil action. If, however, the program has no money to pay any judgment, or as to pre-October 1, 1988 injuries, more than 3,500 judgments have been entered, the victim has the right to proceed in a civil lawsuit.

For some children and adults, future residence in facilities such as small group homes or nursing homes may be most appropriate. However, the Act specifically contemplates sufficient compensation to allow the injured person to remain living at home. [Tabular Data Omitted]

Jack R. Gage received his B.S. from the University of Wyoming and his J.D. from the University of Utah. He is a member of the Laramie County Bar Association, and the Association of Trial Lawyers of America. He has served on the U.S. Court of Appeals, and as Attorney General in Wyoming. Robert T. Moxley received his B.A. and J.D. from the University of Oklahoma. He is a member of the Wyoming State Bar, the American Bar Association, and the National Association of Criminal Defense Lawyers, among others. Helen Woodard received her M.A. in special education from the University of Northern Colorado. She has worked in rehabilitation counseling since 1970, as well as in educational residential placement of people with disabilities. She is currently a member of the Board of Directors of ReEntry Vocational Services, Incorporated.
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Author:Gage, Jack; Moxley, Robert; Woodard, Helen
Publication:The Exceptional Parent
Date:Sep 1, 1989
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