What Do I Need To Know About Vaccine Injury Compensation?
Visit NVIC's Emergency Use Vaccine (EUA) FAQ for information on vaccine injury compensation for injuries caused by an EUA vaccine, such as COVID-19 vaccines.
Q: What is the Vaccine Injury Compensation Program (VICP)?
A: The Vaccine Injury Compensation Program (VICP) was created under the National Childhood Vaccine Injury Act of 1986 (PL-99-660) enacted by Congress to institute vaccine safety reforms in the U.S. mass vaccination system and to create a federal no-fault, non-adversarial alternative to suing vaccine manufacturers and providers in civil court. The law also contained requirements for doctors to (1) give parents vaccine benefit and risk information before vaccination (CDC Vaccine Information Statements - VIS); (2) report serious health problems, injuries, hospitalizations and deaths following vaccination to a centralized federally operated Vaccine Adverse Event Reporting System (VAERS); (3) write down serious health problems following vaccination in the individual's permanent medical record; and (4) keep a permanent record of vaccinations given, including manufacturer's names and lots numbers. NVIC worked with Congress to get these important safety provisions passed within this historic law.
The VICP is administered jointly by the U.S. Department of Health and Human Services (HHS), the U.S. Court of Federal Claims (the Court), and the U.S. Department of Justice (DOJ). The VICP is located in the HRSA Healthcare Systems Bureau. Covered vaccines and compensable injuries are described on the "Vaccine Injury Table."
Federal vaccine injury compensation awarded under the 1986 law was divided into two parts: (1) compensation for injuries or deaths that occurred before October 1, 1988 (no matter how long ago the injury occurred) for which the injured individual could choose to pursue a lawsuit without restrictions but the claim would have had to have been filed in the VICP by January 31, 1991; and (2) Injuries or deaths occurring after October 1, 1988.
If a vaccine injury or death occurred after October 1, 1988, the injured person is required to apply for federal compensation before pursuing a lawsuit against a vaccine manufacturer or vaccine provider in civil court. If the U.S. Court of Claims awards compensation to the vaccine injured person:
- The VICP will offer to pay up to $250,000 for a vaccine associated death.
- The VICP will offer to pay for all past and future unreimbursed medical expenses, custodial and nursing home care; and up to $250,000 pain and suffering as well as loss of earned income.
- If an individual rejects the award or is denied compensation, a lawsuit may be filed in civil court but with certain restrictions.
- Claims must be filed within 24 months of a death and 36 months of an injury.
- The system is funded by a sur-charge on each dose of vaccine sold.
The Vaccine Injury Claims Process
An individual claiming a vaccine-related injury or death files a petition for compensation with the Court and may be represented by an attorney. The Secretary of HHS is named as the Respondent. An HHS physician reviews the petition to determine whether it meets the medical and VICP legal criteria for compensation. This recommendation is provided to the Court through a Respondent's report filed by the DOJ.
The HHS position is presented by an attorney from the DOJ in hearings before a "Special Master," who makes the decision for compensation under the VICP. A decision may be appealed to the Court, then to the Federal Circuit Court of Appeals, and eventually to the U.S. Supreme Court. If a case is found eligible for compensation, the amount of the award is usually negotiated between the DOJ and the petitioner's attorneys. If the attorneys can't agree, the case is scheduled for a hearing for the special master to assess the amount of compensation.
Compensable claims, and even most claims found to be non-compensable, are awarded reimbursement for attorney's fees and costs. A petitioner may file a claim in civil court against the vaccine company and/or the vaccine administrator only after first filing a claim under the VICP and then rejecting the decision of the Court. It can take two to 10 years to resolve vaccine injury claims in the VICP.
Vaccine Manufacturer Liability
While the federal law governing vaccine injury compensation preserved a legal avenue for consumers to sue vaccine manufacturers, in a 2011 split decision in Bruesewitz v. Wyeth by the U.S. Supreme Court blocked the legal right of vaccine injured persons to hold vaccine manufacturers liable for design defect and failing to improve an FDA licensed vaccine to make it less harmful. Justices Sonia Sotomayor and Ruth Bader Ginsberg wrote a strong dissent, objecting to the majority’s inaccurate interpretation of the law and its legislative history.
The majority ruling in this Supreme Court case means that, today, even if a drug company could have improved a government licensed and mandated vaccine to make it less reactive, a vaccine injured person cannot sue the company in a civil court in front of a jury of peers.
National Childhood Vaccine Injury Act Weakened
Additionally, between 1987 and 2016, Congress allowed amendments and broad rule making authority granted to the Department of Health and Human Services (DHHS) to alter and weaken the original Act. The Act’s safety and research provisions, which parents fought hard to secure in the original Act to help prevent vaccine injuries and deaths, have been seriously compromised.
Neglect and lack of congressional oversight on the Act for more than 30 years has enabled DHHS and the Department of Justice to turn what was supposed to be a non-adversarial, expedited, less expensive, fairer and more predictable federal vaccine injury compensation program, which Congress promised parents in 1986, into a highly adversarial, lengthy, traumatic and unpredictable imitation of a lawsuit in front of a one person jury.
The VICP is funded by a surcharge on all doses of vaccines recommended by the CDC for "universal use" by all children. Monies from the surcharge are placed in a Trust Fund maintained by the government for use to pay vaccine victims. (By 2020, over $4 billion had been awarded to vaccine victims and there was a nearly $4 billion surplus in the VICP Trust Fund).
All suspected vaccine reactions should be reported to the VAERS operated by the Food and Drug Administration (FDA) and Centers for Disease Control (CDC). Health care providers are required by law to report reactions. If the doctor will not report the reaction, NVIC will provide you with the forms so you can report the reaction.
Q: Where can I get additional information about the Vaccine Injury Compensation Program?
A: For more information, including information about restrictions that apply to filing a petition, visit the VICP website or phone 1-800-338-2382. For information on the Rules of the Court, including requirements for filing a petition, visit the Court's Website or phone (202) 357-6400.
Q: I think I (or my child) was injured by a vaccine and want to file a claim with the Vaccine Injury Compensation Program. What do I need to do?
A: In order to file a compensation claim you will likely need to hire an attorney who is experienced in bringing vaccine injury claims under the VICP. The VICP maintains a list of attorneys who have filed VICP claims. George Washington University run a pro bono clinic, however, please note that students serve as the attorney (with supervision).
Q: My child has been diagnosed with autism and I believe it was due to a vaccine injury and I want to file a claim. What should I do?
A: In the past, the program has awarded compensation to children who suffered a brain inflammation/encephalopathy after receiving DPT or DTaP vaccine and suffered permanent brain damage, including autism.
To file a claim, parents will likely need to contact an attorney experienced in filing vaccine injury claims under the VICP in the U.S. Court of Claims. There is a statute of limitations on the amount of time that can pass between vaccination, onset of injury and filing a claim. Visit NVIC's Vaccine Injury Attorney Directory FAQ to learn more about obtaining legal assistance to file a vaccine injury claim.