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Federal Vaccine Court Quietly Pays Out Billions

A chickenpox outbreak at a private school in North Carolina drew extensive national news coverage in November. The thrust of most stories was the public health threat of unvaccinated children and superstitious beliefs about vaccine risks.

But there was little fanfare when, about the same time, an obscure federal program that compensates victims of vaccine injuries passed a milestone. Payouts by the national Vaccine Injury Compensation Program, or VICP, have now topped $4 billion.

A branch of the U.S. Court of Federal Claims, the program has adjudicated vaccine injury and death claims for three decades while rarely drawing much attention.

One of the reasons the court works in obscurity is that vaccines provide vast public health benefits, and authorities are reluctant to point to the rare cases where they lead to harm out of fear that the information will dissuade people from being immunized.

Yet the program’s payouts to those injured and their attorneys have mounted since the late 1980s, when the National Childhood Vaccine Injury Act set up the vaccine court as an alternative to lawsuits for people seeking compensation for adverse reactions to vaccines. Payments—which surpassed $4 billion by Dec. 1, according to data from the federal Health Resources & Services Administration—come from a trust fund supplied by a surcharge on vaccines.

Documented vaccine injuries are extremely rare. Over the past 30 years, the vaccine court has received 20,123 petitions claiming injuries and deaths, of which nearly 18,000 have been resolved. Of those, 6,313 have been approved for compensation through settlements or judgments. According to the Health Services & Resources Administration, that translates into approximately one compensable case for every one million doses of vaccines administered.

“The vast majority of people that are coming to my office because they suffered an injury are people who did not even know these types of injuries were a possibility,” said Christina Ciampolillo, president of the Vaccine Injured Petitioners Bar Association, a group of lawyers who bring cases to the vaccine court.

But the number of petitions has grown in recent years, which has led to an uptick in compensated cases. Roughly $1 billion—one quarter of all outlays paid to petitioners and attorneys—were distributed in just the last four years.

In the most severe cases, injuries blamed on childhood vaccines have included brain damage, paralysis and death. Over the years, 1,286 petitions have claimed that adverse reactions caused death, though it’s unclear from government data how many death claims were accepted as vaccine-related, or how many of the victims were children.

Medical experts say the vaccine court has played a crucial role in safeguarding public health by compensating litigants for their injuries and keeping these cases out of the civil courts, where they could potentially undermine the public’s faith in vaccines.

“The creation of the [VICP] saved the vaccine industry in the U.S.,” said Dr. William Schaffner, a professor of preventive medicine at Vanderbilt University School of Medicine, referencing the liability shield given to pharmaceutical companies in the 1986 vaccine act.

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“It provided a vehicle for compensation for genuine vaccine-related injuries,” he added.

But some consumer advocates fear that the program has been diverted from its original purpose of providing a kinder, gentler, more streamlined way for parents of vaccine-injured children to receive compensation without the burdens of going through civil court.

“We’re bitterly disappointed,” said Barbara Loe Fisher, co-founder and president of the nonprofit National Vaccine Information Center. “In my view, this has been turned into stockholder’s dream and a consumer’s worst nightmare.”

Fisher noted that two-thirds of petitioners who apply for compensation are turned away, which she said departs from the original mandate to assume an injury was caused by a vaccine unless there is a more plausible explanation.

The Government Accountability Office echoed some of Fisher’s concerns in a 2014 review of the VICP, which emphasized that most of the claims filed since 1999 were taking years to adjudicate. More than 1,000 claims were pending as of 2014, with some petitioners stuck in limbo for over a decade, the watchdog agency said.

An Associated Press investigation that same year found more alarming problems with the vaccine court. According to the report, families trying to care for permanently disabled children were getting inadequate compensation. It also revealed that some attorneys were filing unsubstantiated claims because they receive payment through the VICP regardless of whether they won or lost.

(iStock photo)

Attorneys for petitioners complain that the vaccine court is understaffed. The number of judges—called special masters—has been capped at eight, causing ”a real strain on the system,” Ciampolillo said. There also are holdups with reviews by the health resources agency, the branch of the Department of Health and Human Services that recommends which claims have merit.

“Initially it was a baseline 90-day review period,” Ciampolillo said. “Now we’re waiting for some claims between eight to 10 months.”

A spokesman for the health resources agency said there are currently 694 pending claims. He said that the 2018 budget increased administrative funding from $7.75 million to $9.2 million, and that officials are working on possible ways to reduce wait time.

While the vaccine court has drawn little public attention, there appears to be a growing movement to question the need for, and number of, children’s vaccines. A recent study found that the number of “philosophical-belief” vaccine nonmedical exemptions has risen in 12 of the 18 states that allow parents to opt out of scheduled shots.

Some of this anxiety stems from the increasing number of vaccines that children have to take at an early age. In 1983, the CDC recommended 23 doses of seven vaccines for children before they turned six. The agency now recommends 50 doses of 14 vaccines. But medical experts say the skepticism toward vaccines is due to success in eradicating the threat of many preventable diseases.

“Young parents, they’ve never seen measles; they don’t see meningitis; they don’t see mumps and the sterility that can result,” said Dr. Cody Meissner, a member of the American Academy of Pediatrics’ committee on infectious disease.

“Most just haven’t seen these diseases… so they say, ‘why should we take the risk?’” he added.

This has contributed to a resurgence of vaccine-preventable diseases in states that allow nonmedical exemptions. According to the study, states that banned nonmedical exemptions have lower rates of illnesses such as measles and pertussis than states that don’t give parents an out.

But another trend could bring greater visibility for the vaccine court in the future. According to the health resources agency, case filings more than doubled from 2014 to 2018, primarily because of a surge in claims of adverse reactions to flu shots, which now account for about 60 percent of petitions.

This spike may be due to a 2010 recommendation by the Centers for Disease Control and Prevention for all adults to get flu shots. The CDC is unlikely to rescind that advice: the agency reported that 80,000 Americans died of the flu in 2017, marking the worst death toll from flu in four decades.