Vaccine Injuries: The Federal Compensation Program
The National Vaccine Injury Compensation Program (VICP) gives a legal remedy to people injured by childhood vaccines.
The National Vaccine Injury Compensation Program (VICP) is a federal program that compensates people who have been injured by certain childhood vaccines. Eligible individuals (or their parents or legal guardians) can avoid litigation in the court system, and instead go through this more streamlined process, where claims are paid from the Vaccine Recovery Fund.
Read on for an explanation of the purpose of the Vaccine Injury Program, how the program works, who is eligible to make a VICP claim, and how claims should be made.
Purpose of Vaccine Injury Compensation Program
In the 1980s, expensive lawsuits over injuries caused by childhood vaccines acted as a deterrent that kept many companies from working to develop new vaccines, even when those vaccines could provide a clear societal benefit. In addition, people and families who had been injured by childhood vaccines spent large amounts of money and time seeking compensation through complex court cases.
In response, Congress established the National Vaccine Injury Compensation Program (VICP) in order to:
- ensure an adequate supply of vaccines
- stabilize vaccine costs, and
- provide an accessible and efficient forum for people who are injured by certain vaccines.
The VICP offers a streamlined approach to compensate children and their families in the very rare instance that a vaccine causes injury. It is a no-fault system, paid for by a small tax on every vaccine.
The VICP went into effect on October 1, 1988. Since that time, the number of lawsuits involving vaccines has decreased markedly, companies continue to manufacture vaccines, and new vaccines are being developed.
How the Program Works
To obtain compensation from the VICP, individuals file a claim in the U.S. Court of Federal Claims. A specially trained lawyer (called a "special master") hears the case. If the claim falls within the VICP guidelines, the special master orders payment from the Vaccine Trust Fund.
Claim Eligibility
Individuals who believe they have been injured by a "covered vaccine" may be eligible to file a claim for reimbursement. Here are the details of eligibility:
Vaccines Included in the Program
The injury must have been caused by one of the following vaccines (or any combination of these vaccines):
- diphtheria, tetanus, pertussis (DTP, DTaP, Tdap, DT, TT or Td)
- haemophilus influenzae type b (Hib)
- hepatitis A and B
- human papillomavirus (HPV)
- influenza (TIV, LAIV)
- measles, mumps, rubella (MMR, MR, M or R)
- meningococcal disease (MCV4, MPSV4)
- polio (OPV or IPV)
- pneumococcal conjugate (PCV)
- rotavirus (RV), or
- varicella (chicken pox) (VZV).
As new vaccines become available, they may be added to the program. For a current list of vaccines that are included in the VICP, visit the Health Resources and Service Administration's (HRSA) VICP website at www.hrsa.gov/vaccinecompensation.
Who Can File a Claim
The following people may file a claim under the National Vaccine Injury Compensation Program:
- people who believe they've been injured by a covered vaccine
- the parent or legal guardian of someone who has been injured, or
- the representative of the estate of a person who died as a result of a covered vaccine.
Injury Caused by the Vaccine
Anyone filing a claim under the VICP must prove that the injury was caused by the vaccine.
Vaccine injury table. This table lists and explains injuries and conditions that are presumed to be caused by vaccines, along with the time period that symptoms occur. If the first symptom of the injury occurs within the listed time period, it is presumed that the vaccine was the cause of the injury or condition (unless another cause is found). You can find the most current version of the vaccine injury table on the HRSA's VICP website at www.hrsa.gov/vaccinecompensation.
Injury or condition not on vaccine injury table. If an injury or condition is not on the table, it's still possible to prove that the injury was caused by the vaccine. This will require additional evidence like medical testimony and treatment records.
Aggravated injury. An injury may also be eligible for coverage via a VICP claim if the vaccine caused an existing condition or illness to get significantly worse.
Severity of Injury
The vaccine injury must also meet one of the following conditions:
- lasted for at least six months after the vaccine was given
- resulted in a hospital stay and surgery, or
- resulted in death.
How much a VICP claimant might receive depends on whether the vaccine caused injury or death.
Injured Individuals
Under the VICP, injured individuals (or their parents or legal guardians) may be paid one or more of the following:
- past and future nonreimbursable medical, custodial care, and rehabilitation costs, and related expenses (there are no limits to what victims may be paid, but the amounts must be reasonable for the particular injury)
- reimbursement for actual and projected pain and suffering, up to $250,000
- lost earnings, and
- reasonable attorneys' fees and other legal costs.
Deceased Individuals
If a person dies from a covered vaccine, the deceased person's estate may receive:
- up to $250,000 as a death benefit, and
- reasonable attorneys' fees and other legal costs.
How to File a VICP Claim
To start the process, file a petition (legal document) with the U.S. Court of Federal Claims. The petition should contain the following information:
- who was injured by the vaccine
- which vaccine caused the injury
- when the vaccine was given
- the city and State or country where the vaccine was given
- the type of injury
- when the first symptom of the injury appeared, and
- how long the effects of the injury lasted.
You must also include medical records and all other documents that show you meet the VICP requirements for claim eligibility.
The fee to file a claim is $350. If you can't afford the fee, you may be able to get it waived. (Call the Clerk of the U.S. Court of Federal Claims at 202-357-6400 for help with this.)
The Rules of Court are very specific as to what you must do to file your claim (for example, you must send additional copies to certain federal agencies, attach the court cover sheet, and more). Check the HRSA's VICP website at www.hrsa.gov/vaccinecompensation for details. If you don't comply with the Rules of Court, your claim will be rejected.
Most claimants hire an attorney to assist them in preparing and filing the petition (although this is not required). As long as you file the claim in good faith, you can get reimbursed for reasonable fees you pay to your attorney, even if your claim is denied. To get a list of attorneys who handle VICP claims, you can:
- contact the Clerk of the U.S. Court of Federal Claims at (202) 357-6400, or
- contact your State or local bar association.
Once Your Claim is Filed: The Claim Process
Once the VICP claim is filed, the Department of Health and Human Services (HHS) reviews the medical information and a Department of Justice (DOJ) attorney reviews the legal aspects of the claim. The HHS and DOJ reviews are combined into one report that is sent to the court and to the petitioner (the person filing the claim) or the petitioner's attorney.
A "special master" (a lawyer appointed by the judges of the court) decides if the claim will be paid and if so, how much will be paid. The petitioner can accept or reject the special master's decision.
The petitioner or the HHS may appeal (ask for a review by a higher court) the special master's decision to a judge of the U.S. Court of Federal Claims, then to the U.S. Court of Appeals for the Federal Circuit, and, finally, to the U.S. Supreme Court.
Finding a Good Personal Injury Lawyer
If you'd like to talk to a personal injury lawyer about a claim for childhood vaccine injuries under the VICP, one good way is to ask friends, acquaintances, or other lawyers for referrals and then interview the candidates. In addition, Nolo provides a personalized Lawyer Directory with information about each personal injury lawyer's experience, education, fees, and more. By using Nolo's directory you can narrow down candidates before calling them for a phone or face-to-face interview. For more details on locating and selecting a good personal injury lawyer, read Nolo's article Finding a Personal Injury Lawyer.