If and when we do get a vaccine for COVID-19, let’s hope it works. Because if the vaccine causes injury, there will be little to no legal recourse.
In the 1980s, Congress created the National Vaccine Injury Compensation Program. While vaccines are very safe and effective in the vast majority of cases, there is still a small percentage of vaccinations that result in various injuries from the administration of the shot itself to a side effect of the vaccine.
I practice in the Federal Court of Claims, where the Vaccine Injury Compensation Program (VICP) is administered. Injuries such as SIRVA (Shoulder Injury Related to Vaccine Administration) and GBS (Guillain-Barre Syndrome), among others, are eligible for damage awards, and I have represented clients who have received such compensation.
However, early on in this pandemic, a Trump administration rule will bar those injured by any Covid-19 vaccine from accessing the VICP.
Emma Coleman reports in Route Fifty that those who are injured or die from a coronavirus vaccine can instead seek compensation through the rarely-used Countermeasures Injury Compensation Program (CICP), which is a different, separate fund run by the U.S. Department of Health and Human Services.
The problem is, rarely does anyone receive an award from that fund. One vaccine specialist told Reuters that the process was a “black hole” handled by HHS outside the court system. Of the 485 claims filed with the CICP since 2010, only 39 people have received compensation totaling $5.7 million — almost all of them for H1N1 flu vaccines.
While the VICP is funded through a tax on vaccines, the CICP relies on Congressional appropriations via contract. Further, the CICP does not pay legal fees or costs, nor does it award pain and suffering damages. Lastly, while the VICP allows three years to file, with the CICP there is just a one-year deadline during which you can bring a claim. That’s not a very big window.
That’s important, because determining an injury from a vaccine is hardly ever an easy or quick thing to do. I’ve personally handled cases where it took the doctors months or even years to understand, diagnose, and treat the injury, not to mention figure out what caused it.
CICP is essentially designed in such a way as to prevent as few cases as possible from being heard – let alone awarded damages — and their rules are stacked against you right from the start with that one-year window.
Right now, many of those who handle vaccine cases are recommending coronavirus vaccine claims be administered through the VICP — and I agree. That system is better prepared to handle a large volume of claims. The VICP has paid an average of 615 claimants each year since 2015 at a rate of about $216 million annually. The VICP system also pays attorney fees and costs, awards damages for pain and suffering, and allows plaintiffs the opportunity to appeal — which is not available through CICP.
The VICP also has a three-year time frame in which to file your claim. This compensation program, which is still tedious, at least gives the claimant time to figure how and if the vaccine caused the injury, pays an attorney (whether you get an award or not) to help you navigate a complex system, is more likely to give you a fair award if you prove your claim and gives you the opportunity to appeal. We’ll be fighting for that!
April 30, 2020
These are unusual times: scary, uncertain, and, unfortunately, even deadly. But one thing many of us ask: “How can we help?” At Kathy Brown Law, we can help by using our expertise to review insurance policies and insurance coverage. For small businesses wondering if they can stay afloat, their commercial insurance policy may offer a ray of hope. For the lay person, an insurance policy can be complicated to read and even more difficult to understand. Questions arise like what does my coverage entail? How do I make a claim? If the insurance company denies my claim, what are my options?
We stand ready to help you get answers. We will review your policy free of charge! If there is coverage, we will help you file a claim. If a claim is denied, we can help you decide the next steps to take that meet your business needs.
West Virginia’s Insurance Commissioner recently put out a Bulletin telling business owners that “some commercial policies may provide business interruption coverage due to an order by a governmental or civil authority.” WV-Insurance Bulletin 20-8. However, the Commissioner explains, “for coverage to apply, most insurance policies still require a direct physical loss from a covered peril as the underlying cause of the business shut down or closure.”
Many insurance companies have written exclusionary language into policies that may result in a denial of coverage if there is a pandemic. However, that is not the end of the story. Insurance policies can be different, and there may be additional coverage options purchased or endorsements that might apply.
That’s where you may need help and we are glad to review your policy. It can all be done remotely, by either scanning the policy and emailing it to us or
faxing it to our office. We can then have a telephone call or Zoom meeting with you to let you know your next step. Our email address is Kathy@kathybrownlaw.com and the fax number is 304-720-2352. You can always call first at 304-720-2351.
We are all in this together and this is a way we can help! Stay well.
Kathy A. Brown -responsible attorney.