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Why Vaccine-Injured Kids are Rarely Compensated

December 13, 2008 | 32,456 views
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childby Barbara Loe Fisher

On Nov. 14, 1986, President Ronald Reagan signed the National Childhood Vaccine Injury Act of 1986 into law, instituting first-time vaccine safety reforms in the U.S. vaccination system and creating the first no-fault federal vaccine injury compensation program alternative to a lawsuit against vaccine manufacturers and pediatricians.

Twenty-two years later, on Nov. 18, 2008, I made a statement to the Advisory Commission on Childhood Vaccines (ACCV) and questioned whether the compensation program is fatally flawed and so broken that it should be repealed. Many parents are wondering whether it would be better to return to civil court without restrictions to sue vaccine manufacturers and doctors for injuries and deaths their children suffered after receiving federally recommended vaccines.

During its two-decade history, two out of three individuals applying for federal vaccine injury compensation have been turned away empty-handed even though to date $1.8 billion has been awarded to more than 2,200 plaintiff's out of some 12,000 who have applied.

Today, nearly 5,000 vaccine injury claims are sitting in limbo because they represent children who suffered brain and immune system dysfunction after vaccination but have been diagnosed with regressive autism, which is not recognized by the program as a compensable event. There is $2.7 billion sitting in the Trust Fund, which could have been awarded to vaccine victims.

Safety Provisions Not Being Enforced

At the time of the law's creation in 1986, Congress said they were committed to setting up a fair, expedited, non-adversarial, less traumatic, less expensive no-fault compensation mechanism alternative to civil litigation. But Congress also acknowledged that any legislation providing liability protection must also be equally committed to preventing vaccine harm.

The Act contains strong safety provisions, including first-time mandates for doctors to record and report serious health problems, hospitalizations, injuries and deaths after vaccination and give parents written benefit and risk information before a child is vaccinated.

But few of the safety provisions have been enforced and, as I testified in Congress in 1999 and again at the Nov. 18 ACCV meeting, there has been a betrayal of the promise that was made to parents about how the compensation program would be implemented.

Obtaining compensation has become a highly adversarial, time-consuming, traumatic and expensive process for families of vaccine injured children, and far too many vaccine victims have been denied compensation. Meanwhile, vaccine makers and doctors have enjoyed liability protection and dozens of doses of nine new vaccines have been added to the childhood vaccine schedule.

I pointed out that federal court judges are beginning to look back at the legislative history of the Act, which so clearly affirms the intent of Congress when creating it. In recent court decisions, judges have agreed with parents and their attorneys that the compensation program has become far too difficult for plaintiffs.

A recent state Supreme Court ruling also reiterated that Congress never intended to shield vaccine manufacturers from ALL liability for vaccine injuries and deaths when it could be demonstrated that a safer product could have been marketed.

In a Supreme Court of Georgia ruling on October 6, 2008 in American Home Products v. Ferrari, the justices unanimously held that the National Childhood Vaccine Injury Act does not give a vaccine manufacturer blanket immunity from vaccine injury lawsuits if it can be proven that the company could have made a safer vaccine. Georgia Supreme Court Justice George Carley wrote that the 1986 law and "the congressional intent behind it shows that the Vaccine Act does not pre-empt all design defect claims."

He added that Congress did not "use language which indicates that use of the compensation system is mandatory" but only "an appealing alternative" to the courts.

Justice Carley wrote that there is no evidence that "FDA approval alone renders a vaccine unavoidably safe" and said "We hesitate to hold that a manufacturer is excused from making changes it knows will improve its product merely because an older, more dangerous version received FDA approval," adding that to do so would have "the perverse effect" of granting complete immunity from liability to an entire industry and he concluded that "in the absence of any clear and manifest congressional purpose to achieve that result, we must reject such a far-reaching interpretation."

More Vaccine-Injured Children Should be Compensated

During the ACCV meeting, longtime plaintiff's attorney Sherry Drew gave a moving description of the suffering that families with vaccine injured children endure and, during public comment at the end of the meeting, Jim Moody, of SafeMinds, and Vicky Debold, RN, PhD joined me in urging the Committee to recommend to the new Secretary of DHHS that more vaccine injured children be compensated. This was echoed by outgoing parent ACCV member Tawny Buck, of Alaska, who has a DPT vaccine injured daughter and new ACCV parent member Sarah Hoiberg, of Florida, who has a DTaP vaccine injured daughter.

In the 1986 Vaccine Injury Act, the Institute of Medicine was directed to review the medical literature for scientific evidence that vaccines can cause injury and death, which resulted in landmark reports to Congress in 1991 and 1994 providing that evidence.

IOM announced at the ACCV meeting that it has recently been contracted by the Health Resources & Services Administration (HRSA) to assemble a Committee of scientific experts to review of the medical literature for evidence regarding the biological mechanisms for injury and death in association with varicella zoster (chicken pox), hepatitis B, meningococcal and HPV vaccine. There will be several public workshops during the Committee's two-year study.

NVIC has been calling for basic science research into the biological mechanisms of vaccine injury and death for more than two decades. Without understanding how and why vaccines can cause brain and immune system dysfunction, there will be no way to develop pathological profiles to help scientifically confirm whether or not an individual has been injured or died from vaccination.

The Truth About Vaccine Risks

The truth about vaccine risks lies in the science, properly designed and conducted. The upcoming IOM review may be hampered by a lack of biological mechanism studies published in the medical literature but the review is also an opportunity to point the way to fill in those gaps in knowledge and the need for additional research that could become part of a national vaccine safety research agenda.

In the absence of scientific certainty, all children who regress into poor health after vaccination should be given a fair hearing in the federal vaccine injury compensation program and generously compensated when no other plausible cause can be found for what happened to them after vaccination. Congress intended the vaccine injury compensation program to be non-adversarial, fair, generous and humane.

If it cannot function the way it was intended to function, then parents have every right to call for its repeal and a return to unrestricted lawsuits.
 

Dr. Mercola's Comments:

The National Vaccine Injury Compensation Program (VICP) was “established to ensure an adequate supply of vaccines, stabilize vaccine costs, and establish and maintain an accessible and efficient forum for individuals found to be injured by certain vaccines.”

When you read between the lines, you discover that what this really means is that a program has been put into place to protect vaccine manufacturers (i.e. “ensure an adequate supply of vaccines”) and NOT to look out for those injured by vaccines.

This is why Barbara Loe Fisher, one of the top vaccine experts in the world, and other vaccine-choice advocates are calling on Congress to revamp, and possibly even repeal, this fatally flawed program.

Major Flaws of the National Vaccine Injury Compensation Program

Prior to October 1, 1988, an individual could pursue an unrestricted lawsuit against a vaccine manufacturer if they or their child was injured by a vaccine. After that date, including currently,, you are required to apply for federal compensation prior to pursuing a lawsuit.

According to the program’s guidelines:

• The system will offer to pay up to $250,000 for a vaccine-associated death.

• The system will offer to pay for all past and future unreimbursed medical expenses, custodial and nursing home care; up to $250,000 pain and suffering; and loss of earned income.

$250,000 for a child killed or severely injured by a vaccine?

This amount falls far short of what is deserved and required. You simply cannot put a price on a lost life, and a study by Harvard professor Michael Ganz found that the lifetime cost of caring for a child with autism is more than $3 million.

Yet, parents who believe that a vaccine caused autism in their children probably won’t even get $250,000 from the fund.

According to statistics from the U.S. Department of Health and Human Services, not one case related to autism has been deemed “compensable.” And only last year did the government concede that vaccines “significantly aggravated” an underlying disorder and caused “autistic symptoms” in one 9-year-old girl named Hannah Poling.

The courts ruled that her family is entitled to compensation from the fund, but there are still 4,900 autism cases pending.

Meanwhile, as of October 2008, a total of 12,746 claims have been filed, and of them 2,266 have been compensated while 4,755 have been dismissed. And although the claims were supposed to be handled "quickly, easily and with certainty and generosity," according to a House report accompanying the 1986 legislation, many claims have taken years -- more than 10 years -- to be settled. Even the U.S. Health Resources and Services Administration states that, on average, it takes two to three years to adjudicate a claim after it is filed.

But you haven’t heard the worst of it until you find out who is actually responsible for paying the meager compensations that do get paid. Is it the vaccine manufacturers, as one might suspect?

Not a chance.

The system is funded by a surcharge on each dose of vaccine sold. The doctors pay the tax initially when they purchase the vaccines, but this is passed right down to the parents of the child.

So not only are the vaccine manufacturers shielded from potential lawsuits, they are not even responsible for paying one cent of the claims filed against them -- you are!

And the lawyers who fight against the families who have filed claims with the system? Well, they’re not related to the vaccine manufacturers either. In fact, they are full-time government attorneys, employed solely for the purpose of battling to defend the vaccine manufacturers.

What Options do You Have?

The government essentially forces children to get vaccines by threatening to not let them into the school system otherwise. Well, a growing network of parents have decided to homeschool their children, in part because of their belief that mandated vaccinations for public and private school children are a dangerous overreach by state governments.

The trend toward not vaccinating has been growing for some time now. Close to 70 percent of physicians say that the number of concerns from parents have increased significantly in recent years.

And rightfully so.

Vaccines given to newborns contain an array of potentially toxic chemicals including:

• Formaldehyde
• Aluminum phosphate (toxic and carcinogenic)
• Antibiotics
• Phenols (corrosive to skin and toxic)
• Live viruses and various other components

The truth is that vaccinations are not the heavily promoted miracle cure-all that will keep your children from getting sick. And all vaccines carry the risk of serious side effects such as crippling neurological damage like autism and even death.

If your child is vaccinated according to the CDC's recommended schedule, by the time your child starts kindergarten he or she will have received 48 doses of 14 vaccines.  Of these, 36 doses will be given during the first 18 months of life.

Public health officials have NEVER proven that it is indeed safe to inject this number and volume of vaccines into infants. What's more, they cannot explain why, concurrent with an increasing number of vaccinations, there has been an explosion of neurological and immune system disorders in American children.

As I’ve stated before, homeschooling your children is far from the only option out there.

Dr. Donald Miller, a cardiac surgeon and professor of surgery at the University of Washington in Seattle and a member of Doctors for Disaster Preparedness, has devised a more sensible vaccination schedule, which advises the following:

         1. No vaccinations until your child is 2 years old.
         2. No vaccines that contain thimerosal (mercury).
         3. No live virus vaccines.
         4. The following vaccines can be given one at a time (not as a combination vaccine), every six months, beginning at age 2:
                *  Pertussis (acellular, not whole cell)
                *  Diphtheria
                *  Tetanus
                *   Polio (the Salk vaccine, cultured in human cells)

Your pediatrician will not like this schedule, but if you have reviewed the evidence and still feel your child should be inoculated to a certain degree, this is a far safer alternative to the standard vaccination schedule.

If you decide you do not want to vaccinate, know that all 50 states have vaccination requirements but all states provide exemptions for medical reasons while 48 states allow exemptions for sincerely held religious beliefs. Another 18 states allow parents to opt out for personal, conscientious or philosophical beliefs as well.

My previous article, How To Legally Avoid Unwanted Immunizations Of All Kinds, spells out how you go about practicing this right, as does an entire chapter in my book Take Control of Your Health.

Are You Ready for Change in Vaccine Safety Reform?

The National Vaccine Information Center (NVIC), which was co-founded by Barbara Loe Fisher, is the American vaccine safety watchdog. They are currently being flooded with vaccine reaction reports and parents reporting that their vaccine exemptions are being pulled or they can't get one. I highly recommend you make a donation to the NVIC to help support them in their efforts to raise awareness about these vital issues and implement vaccine safety reform.

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