|
This bill was introduced on March 28,
2001, HR 1287, in the House of Representatives by Congressman
Dave Weldon (R-FL) and Congressman Jerrold Nadler (D-NY).
Other co-sponsors include Rep. Dan Burton
(R-IN), Rep. Barney Frank (D-MA), Rep. Pete Sessions (R-TX),
Rep. Jim McGovern (DMA), Rep. Steve Horn (R-CA), Rep. Karen
McCarthy (D-MO), and Rep. Jim Turner (D-TX.
This legislation will help families who
are trying to get compensation for their children.
You can call
your Washington DC legislators at 202-224-3121 and ask for
your member of Congress.
If you do not know who that is, ask the
operator to help you identify that person.
When you reach the member's office, ask
to speak to the staff person handling health-related legislation.
Give them the bill
number and a short
explanation and ask them to become a co-sponsor
of the bill. Have them call Cong. Weldon or Cong. Nadler and
offer their support.
If any of the provisions in this bill
have a direct bearing on your ability to receive compensation
for your child, relate your story to the staff member. It
is more likely that they will be interested in helping. Ask
to meet with your representative when he/she is in the home
district.
The original intent of the compensation
program was to provide a quick and easy way for parents to
get financial help for their vaccine injured children. The
program is anything but quick or easy. This legislation is
the beginning of an effort to restore the bill back to the
original intent of Congress as to how this program was supposed
to work.
Please call us at 703-938-0342 and let
us know the response you receive or if you need more information.
HR 1287
This bill provides for changes in four
very important areas:
1. The Statute
of Limitations
In order to file a claim under the Vaccine
Injury Compensation Program (VICP), it has to be brought within
3 years of the onset of the injury claimed to have been caused
by the vaccine(s). It does not matter that the claimants may
not have even known that the vaccine caused their injuries.
HR 1287 will amend the statute to allow for what is called
a discovery rule.
This means that the statute of limitations
(SOL) would not begin to run until someone knew or should
have known that their injuries were caused by the vaccine(s)
and that they had a possible claim under the Vaccine Injury
Compensation Program. The time period for filing would be
extended from 3 years to 6 years. The bill also has provisions
which toll (stop the running of) the statute of limitations
during minority (until a child reaches age 18).
This provision will help the families
who never got a correct diagnosis of a vaccine injury and
who did not find out about the program until too late.
2. The Burden
of Proof
In law, there are different burdens of
proof that are required for different things. For instance,
to convict someone of a crime requires proof "beyond
a reasonable doubt." Below that is a level of proof where
something has to be proven by "clear and convincing"
evidence.
Next down the ladder is the burden used
in traditional civil tort litigation, where the plaintiff
has to prove something is more likely than not, "by a
preponderance of the evidence." For Veterans' Claims
and Workers' Compensation Claims, a lower burden is used,
where the benefit of the doubt goes to the claimant.
In HR 1287, the Petitioner's burden of
proof is reduced from the "preponderance" standard
to the same language used in Veterans' claims. This bill states
clearly that the purpose of the program is (as Congress originally
intended) to generously compensate the children and other
victims of vaccinations.
It was Congress' intent to err on the
side of over-compensating, rather than under-compensating,
these people. This bill also makes it clear that this is a
remedial program and the government should not raise a claim
that this is a "waiver of sovereign immunity" (where
the bill would be strictly construed against the Petitioners.)
Finally, the bill makes it clear that
the government can still raise the possibility of an alternate
cause (something other than the vaccination), but they must
prove this alternate cause by "clear and convincing"
evidence.
3. Interim
Fees and Costs
One of the reasons so few lawyers are
willing to get involved and stay involved in these cases is
because the payment for attorneys is extremely low compared
to the rewards of traditional civil litigation. Claimants
and their lawyers must often wait years to receive reimbursement
of their costs and payment of the attorneys' fees.
Lawyers are expected to compete in a highly
litigious environment, where the burden of proof is relatively
high, without the benefits of traditional civil discovery,
and with small and delayed compensation for their effort.
This bill would make it possible for claimants
to petition, no more than once every 90 days, for payment
of interim fees and costs. This will allow experts to be paid
in a timely manner, and Petitioners will finally be able to
conduct the testing and studies necessary to prove their claims.
Remember that the attorneys for the government
are paid every thirty days and the attorneys for the children
have to wait until everything is finalized, in many cases,
waiting for years. In the meantime, the burden of financing
the case falls on the shoulders of the family and the attorney.
This provision will help level the playing field for the attorneys
who are trying to help the families.
4. The Right
to Refile
This bill allows for a petitioner to refile
a claim if the original claim did not meet the $1,000 unreimbursed
expense requirement (now no longer a requirement) or if the
petitioner missed the deadline that is being corrected by
HR 1287. If passed, the petitioner would have the right to
refile within 72 months after turning 18 or within 24 months
after the bill becomes law, whichever is a longer period of
time.
Learn more about vaccines, diseases and
how to protect your informed consent rights http://www.909shot.com
The National
Vaccine Information Center is funded through individual
membership donations and does not receive government funding.
| 