How the Vaccine Injury Compensation Program Works

https://www.theatlantic.com/health/archive/2019/05/vaccine-safety-program/589354/

Vaccines are safe,” says Narayan Nair. “That’s the message we need to get out there.”

Nair is a physician. He is also the head of the Vaccine Injury Compensation Program—the system through which the U.S. government has, over the past three decades, paid more than $4 billion to people who claim to have been harmed by vaccines.

According to its public record, from 2013 to 2017 alone, the program paid out an average of $229 million a year to patients and their families. The average payment was about $430,000.

As America enters the worst measles outbreaksince the disease was declared eradicated two decades ago, it is worth examining this rarely talked about element of vaccination requirements. The Vaccine Injury Compensation Program has long percolated at the heart of misinformation and misunderstanding. It also raises questions about where large sums of tax money are flowing.

For most drugs—actually, every type of drug other than vaccines—the manufacturer can be legally liable for harm that results from a product it sells. Vaccines are produced by privately held pharmaceutical companies, but they have a unique arrangement with the U.S. government: When a person reports harm that could feasibly be related to a vaccine, a government program—not a pharmaceutical company—pays compensation.

 

The fact that the government pays hundreds of millions of dollars every year to people who claim they’ve been injured by vaccines could be an alarming thing to see in your Facebook News Feed, especially if you’re a parent whose pediatrician assured you that vaccination is nothing to worry about. In one case, a viral articlecalled “Flu Vaccine Is the Most Dangerous Vaccine in the U.S. Based on Settled Cases for Injuries” points to these payments as evidence of vaccines’ danger. The post was published on a site called Health Impact News: News That Impacts Your Health That Other Media Sources May Try to Censor! and appears to have 210,000 likes on Facebook.

Subsequent Googling may only make things worse. Search for Vaccine Injury Compensation Program, and one of the first results is a site that appears to be an impartial source of information: the National Vaccine Information Center. But it is a private organization unrelated to the program, and it is a favorite of the noted conspiracy theorist Alex Jones, who described it as “the best-informed group trying to expose the dangers of vaccines.”

The head of the center, Barbara Loe Fisher, has appeared on Jones’s show several times. One time she made the casethat vaccination had become a political tool to gain access to Americans’ DNA for nefarious purposes. “So they’re using the vaccine-monitoring system as the skeletal system for a total takeover of health care,” Jones surmised, blaming Barack Obama. “Then they’re using bioethicists to bring back eugenics and take over health care.”

The road from a quick question about the flu vaccine to certainty about state-sponsored genocide has never been shorter.


The “vaccine-hesitant” community is a unique ideological mix of anti-corporate liberalism and anti-government individualism. Over the years, the VICP has been criticized for paying too much and for paying too little.

The Vaccine Injury Compensation Program’s first payment was made in 1988, but its current operations can only be understood through the lens of decades prior. In the spring of 1970, after she had received a dose of oral polio vaccine, eight-month-old Anita Reyes stopped moving her legs. Paralysis spread upward to her waist, resulting in permanent incontinence, in the classic pattern of polio.

Her father filed suitagainst the maker of the vaccine, Wyeth Laboratories. Its polio vaccine at the time involved a live virus that was capable, in extremely rare cases, of causing the disease itself. A jury awarded the Reyes family $200,000 on the grounds that even though the risk of developing polio from the vaccine was known, the family had not been properly warned. Because the disease had, until the previous decade, paralyzed thousands of American children every year—it peaked in the United States in 1952 with some 21,000 paralytic cases—the known risk of the vaccine was heavily outweighed by the risk of going unvaccinated.

But as diseases like polio began to fade from memory, the American public began to worry instead about the specter of vaccine-related illness. Other lawsuits against vaccine manufacturers began to make news in the 1970s and 1980s. Vaccines for the disease pertussis were particularly targeted, having been tied to cases of encephalopathy. One lawsuit in 1978 increased to 73by 1984. The average claim increased from $10 million to $47 million.

In several instances, damages were awarded “despite the absence of scientific evidence,” says Cody Meissner, the chair of pediatric infectious disease at Tufts University School of Medicine. As we spoke, his pager went off six times. “It’s impossible to prove a negative,” he emphasized to me, meaning that when an illness occurs shortly after a child receives a vaccine, it’s very easy to suggest a causal link, and not technically possible to prove that the vaccine was not the cause.

Because many cases against vaccines involve claims of permanent injury to children, they not only are difficult to argue, but can be expensive. With this in mind, the pharmaceutical companies that make vaccines began to shift their calculus. The drug-development process is costly and time-consuming, and not likely to be embarked upon without a high-likelihood payoff for a drug company’s shareholders. Developing a novel vaccine that could prevent hundreds of thousands of cases of a deadly disease—but cause a much smaller number of side effects that could lead to multimillion-dollar lawsuits—made a useful product an unappealing business proposition. During the 1970s and ’80s, some manufacturers began to withdraw from vaccine production.

In the midst of this, public-health officials grew concerned about the stability of the country’s continued supply of existing vaccines—and the dwindling business incentive for companies to invest in developing new ones. It was on these grounds that Congress passed the National Childhood Vaccine Injury Act of 1986 (also known as the Vaccine Act), indemnifying drug companies from further lawsuits.

From then on, instead of suing drug companies, people who alleged injury or illness related to a vaccine would file claims with a new entity known as the Vaccine Injury Compensation Program. When a person brings a caseof reported harm, members of a team that currently includes Nair and 10 other doctors from the Department of Health and Human Services (all of whom have vaccinated their kids, Nair emphasized to me) review the person’s medical records. The team then recommends whether the case should be compensated or defended in “vaccine court,” the term for the federal claims court dedicated to hearing cases of vaccine injury.

Which brings us to the $4.1 billion.


“The creation of the VICP was a quid pro quo,” the Stanford Law School professor Nora Freeman Engstrom told me over email. People who may have been injured by vaccines would give up some ability to seek redress through the court system. In return, they would be assured swift and certain compensation. The program was chargedby Congress to address claims “quickly, easily, and with certainty and generosity.”

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