How to win in Vaccine Court

In 1988 the US Health and Human Services set up the “National Vaccine Injury Compensation Program” (VICP) to compensate those people and families who were injured through the use of childhood vaccines.

Between 1989 and July 1, 2014, 3,645 compensation awards have been made by VICP, totaling over $2.7 billion dollars in awards, and $113.2 million in legal costs. Another 9,786 claims were dismissed by the courts. So out of a total of 13,431 claimants, a little over 27% won awards.

In the mid-1980s British researchers found a possible link between the pertussis portion of the diphtheria-pertussis-tetanus (DPT) vaccine and neurological harm to children. This claim was later discredited by better studies, but British families were so alarmed that they refused the pertussis vaccine – resulting in a dramatic incidence of whooping cough which directly led to the death of 70 children.

gavelIn the United States, several parents sued the manufacturers of the DPT vaccines. And even though scientists and public health officials believed the claims of neurological side effects were unfounded due to lack of evidence, many of these parents won substantial awards through sympathetic juries who were convinced otherwise during trial.

As a result, most companies who made the DPT vaccine ceased production. Only a few major manufacturers remained in the business of producing this vaccine, and they were planning to exit the business too.

One of the benefits of a well-vaccinated community is an effect known as “Herd Immunity”. This form of immunity happens when enough of a community is immune to infection that it breaks chains of infections therefore preventing the spread of infection. When a larger portion of the community is resistant, there is a smaller probability that someone susceptible to infection will come into contact with disease. As community resistance to infection decreases it becomes more probable, and even likely, that susceptible individuals will succumb to disease.

Health officials in the USA feared the loss of herd immunity, and Congress responded by creating VICP to remove the burden of lawsuits against vaccine manufacturers.

The VICP program provides for compensation to children who have severe adverse effects from any childhood vaccine. Compensation includes medical expenses, loss of future income, and up to $250,000 in “pain and suffering”. Claims paid on vaccines received before 1988 came directly from the U.S. Treasury, and later claims are paid by a VICP trust fund of over $2 billion dollars, created by a $0.75 per-vaccine patient fee. It takes the VICP about 2 years to process and resolve a petition.

In order to win an award through VICP, the claimant is not required to provide proof of causation to the extent of scientific certainty.

Instead the VICP uses the civil-law standard of, “the preponderance of the evidence”. According to the legal definition this standard is met if the proposition is “likely to be true” – it is satisfied if there is a greater than 50 percent chance that the proposition is true.

The VICP standard of certainty is far from the scientific standards of error. In science, propositions are said to be “statistically significant” if the percent of error is less than 5%, and “statistically likely” if the percentage of error is 1% or less. A drug with a significance level of 50% would never make it through FDA approval, and may get the lead scientists fired for even trying!

Even in criminal law, “the preponderance of the evidence” is not enough to convict. Instead, clear and convincing evidence is required to judge a person “guilty.” So it is very obvious that the VICP sets a very low bar for payout of compensation claims.

This “no fault system” is administered by Office of Special Masters of the U.S. Court of Federal Claims, and is often called, “Vaccine Court”.

Before 1998, there were few claims in VICP against autism-related adverse effects from immunization. In 1998, Andrew Wakefield published a fraudulently created research paper in support of a link between the MMR vaccine and the appearance of Autism and bowel disease. No scientist since then has been able to reproduce his results. Britain’s “The Sunday Times” was able to reveal that Wakefield had changed and misreported the results in his research in order to create the appearance of a link between autism and the MMR vaccine. It showed that Wakefield had falsified data, and the paper also showed that Wakefield had plans to sell home diagnostic kits for the condition he posited in his study, “autistic enterocolitis”. Wakefield predicted that he could make more than $43 million a year selling these kits.

As a result of this paper, the reporting of the “Sunday Times”, and investigation by medical, scientific, and legal officials, “The Lancet” retracted the paper, Wakefield’s co-researchers withdrew their names from the paper, and Wakefield was stripped of his license to practice medicine.

A more unfortunate result was reduced vaccination of children due to the general public being scared of a non-existent link between vaccines and autism. For some reason, bowel disease has not made it to general public awareness in this vaccine scare.

In the early 2000’s, the VICP started receiving claims of autism as an adverse effect of immunization. The first payout of an autism-related claim happened in 2008, and the largest payouts happened in 2013, in two separate cases that resulted in the award of tens of millions of dollars.

But these cases were not rewarded on the basis of autism.

The VICP has a list of possible injuries and conditions that are presumed by science to be caused by vaccines. This list is known as the “Vaccine Injury Table”, and it not only lists symptoms, but the time period in which these symptoms are supposed to occur.

Since there is no scientific evidence that autism can be caused by vaccination, the VICP does not list it as a possibility on this table.

There is a range neurodevelopmental disorders in the autism spectrum, and although these disorders share symptoms, they may have unrelated causes. Little is known for sure – that autism is highly heritable, and likely to be triggered by both environmental factors and genetics.

The hypothesis that vaccines cause autism has been well tested in many scientific studies, none of which show a link. Therefore, they are not on the VICP’s “Vaccine Injury Table.”

So how does a claimant with autism win at vaccine court? They claim encephalopathy, which can occur within 5-15 days after a MMR vaccine. Encephalopathy is another way of saying, “a disease of the brain” – which doesn’t refer to a single disease, but refers to a brain disorder that could have different causes. Encephalopathy is a broad term, and therefore it could refer to disorder that is curable, or permanent, or degenerative.

Encephalopathy is medical shorthand for saying, “We don’t know what happened”.

The two largest payouts in 2013 were fought in the VICP court for years, with the first hearings happening in 2005. The government finally agreed to settle, and the U.S. Department of Health and Human Services offered to pay millions over the life of the two claimants, whose families accepted the offers.

During this settlement, HHS did not admit that vaccines caused autism, or even encephalopathy. They merely decided not to dedicate any more resources to defend the case. In other words, it was cheaper for them to settle the case than it was to fight it.

HHS has never concluded in any case that autism was caused by vaccination. This is in-line with scientific studies that show no link between autism and vaccines.

How do you win at vaccine court for a condition that time and again can NOT be linked to vaccines?

You wear them down until it is cheaper for them to just give you what you want.