Opinion | The experimental COVID-19 vaccines are being released first to a designated group of health care workers and residents of senior living facilities. As more of the vaccines becomes available, people at high-risk to the SARS-CoV-2 virus due to their medical conditions will be given an opportunity to get vaccines. Finally, the general public will be offered the vaccines. This process of distributing the COVID-19 vaccines in the United States may take six months or longer.
Increasingly, there are reports of health care workers and emergency first responders who are expressing reluctance to get the COVID-19 vaccines when they are offered to them.1 2 3 It is unclear how receptive seniors citizens who are living in nursing homes or receiving care in other types of facilities will be to getting vaccinated against COVID-19 or whether they will be allowed to have a choice in the matter… Which leads to the question, “What happens when someone is injured as a result of getting a COVID-19 vaccine? What are their options for seeking compensation?”
CounterMeasures Injury Compensation Program
The CounterMeasures Injury Compensation Program (CICP) is really the only option. But the CICP is not particularly equitable, efficient or fair… from the standpoint of petitioners. It is extremely difficult for a petitioner to prevail in the CICP. Only eight percent of all petitioners since 2010 have been awarded compensation through the CICP. It has been said, “the CICP is a program where you have the right to file and lose.”4
The program does not provide reimbursement for legal representation or medical expert fees. The vast majority of us will never be able to afford these fees, generally ranging between $25,000 for shoulder injuries in the National Vaccine Injury Compensation Program (NVICP) to $250,000 and up for more complex and protracted cases.
The program does not provide pain and suffering awards. In the NVICP, this benefit can be awarded up to max of $250,000.
The program does pay for lost wages. However, future lost wages are limited to $50,000. Past lost wages is capped at two-thirds of your employment compensation. The CICP does pay for unreimbursed medical expenses. What is unclear is whether the program will pay for lifelong care.
In the CICP, there is no trust fund established by a levy or tax on the countermeasure. Just appropriations by Congress that are not public information.
In the NVICP, you can appeal to a higher court. In the CICP, there is no judicial appeal. You are asking the Secretary of the U.S. Department of Health and Human Services (HHS) to reconsider the decision. The same department who denied your claim initially to reconsider. That sounds fair.
One of the saddest elements of the CICP is that it is the payer of last resort. The U.S. Health Resources and Services Administration (HRSA), which is the administrator of the program, can wait to see any private insurance coverage or life insurance pays first, then Medicaid/Medicare and Social Security disability, then the CICP.
So, if your loved one dies because of a countermeasure device, medication, medical treatment or covered vaccine and the estate receives a compensable decision of $250,000 in death benefits, the estate receives a check for that amount, correct? Wrong. Private life insurance pays first, say $200,000. The check received would be only $50,000 or less if there are other benefits awarded to the deceased before CICP pays.
HRSA is often unclear with their answers to questions regarding types of awards. I have been filing Freedom of Information Act (FOIA) requests for more than eight years asking for all case decisions with personal information redacted. They have refused. Hiding behind the answer that the CICP is an administrative function, not a judicial legal proceeding. Thus, they are not required to provide to the public this information.
When asked in the recent ACCV meeting about funding, the representative provided an answer of “funding for future COVID petitions has already been appropriated by Congress.” The CARES Act (passed Mar. 27, 2020) allocated money. So, they knew they would be paying out damage awards before any type of development of a vaccine was announced and other COVID-19 related countermeasures were approved.
When asked if there were any petitions already received for COVID-19, the answer was yes. But not for the vaccine, but rather for other countermeasures used to provide care for patients. When pressed for more specifics, the answer is “we are working with the HRSA FOIA office to determine what information can be provided.” I have received that same answer for the last eight years.
The U.S. government is spending a lot of time and effort to convince the public that the COVID-19 vaccines are safe. We have past presidents lining up to receive the vaccines. It reminds me of when President Gerald Ford received a Swine Flu vaccine in the Oval Office back in the fall of 1976. I remember the debacle of that experimental vaccine which caused 450 people to develop the neurological disorder known as Guillain-Barré syndrome (GBS).5
If they want to provide some confidence to the public, why don’t they disclose what is happening with the injuries? By keeping it in the dark, the they think the public views the vaccine as safe. When then news of injures will eventually come out and public confidence will nosedive. And now we are seeing media and our government diverting discussion of vaccine safety by calling it “misinformation.”
Another question posed to the HRSA representative was whether the CICP information will be printed on the Vaccine Information Statement (VIS). The answer? “That has not been determined.” No public awareness for those who are injured by a countermeasure.
And another ongoing effort by the Secretary of HHS is to strip Section 17 out of the NVICP. This section deals with the allowing the U.S. Centers for Disease Control and Prevention (CDC) and other scientific communities to decide which vaccines should be added to the Vaccine Program. If ACIP approves a vaccine for routine administration, The Secretary shall add the vaccine to the NVICP within two years. Without Section 17, any approved vaccines might not have any compensable mechanism afforded to them for injuries.
In March 2020, the Secretary of HHS quietly issues a notice of proposed rulemaking (NPRM) in a confidential memo to ACCV members to modify the Vaccine Injury Table of the NVICP to remove SIRVA (shoulder injury) and Syncope (fainting). The memo was leaked. It became public and the Advisory Commission on Childhood Vaccines (ACCV) in May voted unanimously to reject the Secretary’s proposal.
But then in July the Secretary of HHS doubles down on his efforts and files the NPRM in the federal register to remove SIRVA, Syncope and Section 17. Included is a hard deadline for all public comment set for Jan. 12, 2021.
Michael Milmoe, former attorney for the U.S. Department of Justice representing Secretary of HHS since the beginning of the Program, and now representing injured clients, stated in his testimony in the ACCV meeting:
In the entire 34-year history of the [NVICP] the Secretary has never moved forward with changes to the Vaccine Injury Table without first obtaining the approval, the buy-in if you will of this Commission—that is until now.
If the Secretary of HHS is successful in adding this rule, then it is conceivable that any new vaccines approved by the CDC will have injury petitions adjudicated in the CICP where the public is not allowed to review and see how their tax dollars are spent.
If at the end of the day, the scientists recommend that COVID-19 vaccines be recommended for routine use in children, all COVID-19 cases should be covered by the [NVICP]. Not the CICP. The proposed Rule give the Secretary the sole discretion to make that decision, and from a scientific and policy standpoint, that is very unwise.
Imagine several other childhood vaccine injuries being removed from the NVICP and forcing parents to fight it out in the CICP.
This is distinct possibility, and one that may be gaining momentum.
Wayne Rohde, author of The Vaccine Court-The Dark Truth of America’s Vaccine Injury Compensation Program and The Vaccine Court 2.0 (to be released early 2021) and host of podcast RightOnPoint.online discussing legal issues of The PREP Act, The NVICP, and legalities surrounding CounterMeasures Injury Comp Program and COVID vaccine.
Click here to view References:
1 Bloomberg. Some US healthcare workers refusing Covid vaccine out of fear. New Straits Times Dec. 18, 2020.
2 Dorn S. More than half in FDNY say they’ll refuse COVID-19 vaccine. New York Post Dec. 5, 2020.
3 Singh S, Goldman H, LaVito A. Fears Prompt Some Medical Workers to Balk at Getting the Vaccine. Bloomberg Dec. 17, 2020.
4 Rohde W. Covid 19 Vaccine Injuries Deserve Litigation in the National Vaccine Injury Compensation Program. Age of Autism Nov. 23, 2020.
5 Eschner K. The Long Shadow of the 1976 Swine Flu Vaccine ‘Fiasco’. Smithsonian Magazine Feb. 6, 2017.