On October 1, 1988, the National Vaccine Injury Compensation Program (the Program), Subtitle 2 of Title XXI of the Public Health Service Act (the Act), became effective. The Program is a federal "no-fault" system designed to compensate those individuals, or families of individuals, who have been injured by childhood vaccines. The vaccines covered under the Program are: diphtheria, tetanus, pertussis, (DTP, DTaP, DT, TT, or Td), measles, mumps, rubella (MMR or any components), and polio (OPV or IPV), whether administered individually or in combination. Effective August 6, 1997, hepatitis B, Haemophilus influenza type b, and varicella (chicken pox) vaccines have been added for coverage under the Program. Eight years' retroactive coverage from the effective date will be provided for vaccine-related adverse events associated with these three new vaccines.
A claim may be made for any injury or death thought to be the result of a covered vaccine. Claims may be filed by the injured individual; or a parent, legal guardian, or trustee may file on behalf of a child or an incapacitated person. Compensable injuries are either those listed in the Vaccine Injury Table, which is found in the Code of Federal Regulations, Section 2114 of the Act, or those which petitioners can demonstrate were caused by the vaccine.
The Program is administered jointly by the Department of Health and Human Services (HHS), the U.S. Court of Federal Claims (the Court), and the Department of Justice (DOJ). The process is as follows:
First, an individual claiming injury or death from a vaccine files a petition for compensation with the Court. Next, a physician at the Division of Vaccine Injury Compensation, HHS, reviews each petition to determine whether it meets the criteria for compensation and makes a recommendation on compensability. This recommendation is provided to the Court through a report filed by DOJ, although it is not binding. The HHS position is represented by an attorney from DOJ in hearings before a "special master" who makes the initial decision for compensation under the Program. A special master is an attorney appointed by the judges of the Court. Decisions may be appealed to the Court, then to the Federal Circuit Court of Appeals, and then to the Supreme Court.
No petition may be filed under this Program if a civil action is pending for damages related to the vaccine injury, or if damages were awarded by a court or in a settlement of a civil action against the vaccine manufacturer or administrator.
It is not a requirement to have attorney representation during this process; however, because the Rules of the Court are very specific and must be strictly followed, many petitioners have made the decision to have an attorney represent them. The Act provides for the payment of reasonable attorneys' fees and costs, regardless of the Court's decision on compensability, providing the case is brought in good faith and there is a reasonable basis for the claim. An attorney who files a petition must be admitted to the U.S. Court of Federal Claims Bar.
To obtain information regarding attorneys with experience in vaccine injury litigation, contact the following associations:
State Bar Association (for your specific State)
For information on the Rules of the Court, including requirements for filing a petition, call or write to: Clerk U.S. Court of Federal Claims 717 Madison Place, N.W. Washington, D.C. 20005 202-219-9657
In addition to filing a petition with the Court, a copy of the petition must also be served on the Secretary, HHS, who is the respondent for all petitions under the Act. The Secretary's copy should be sent to: Director Bureau of Health Professions, HRSA Parklawn Building, Room 8-05 5600 Fishers Lane Rockville, Maryland 20857
If you have further questions on the Program not answered in this information packet, please write to: National Vaccine Injury Compensation Program Parklawn Building, Room 8A-35 5600 Fishers Lane Rockville, Maryland 20857
Enclosed are copies of:
- the Vaccine Injury Table;
- a brief summary of the compensation that may be awarded; and
- the medical records necessary for a complete review of each claim.
COMPENSATION THAT MAY BE AWARDED
Vaccine-Related Injury
- Reasonable compensation for past and future unreimbursable medical, custodial care, and rehabilitation costs.
- $250,000 cap for actual and projected pain and suffering, emotional distress.
- Lost earnings.
- Reasonable attorneys' fees and costs.
- Deadline for filing: Within 36 months after the first symptoms appeared.
Vaccine-Related Death
- $250,000 for the estate of the deceased.
- Reasonable attorneys' fees and costs.
- Deadline for filing: Within 24 months of death and within 48 months after the onset of the vaccine-related injury from which the death occurred.
NECESSARY MEDICAL RECORDS
The Act specifies certain medical records that must be provided with petitions filed under the Program. However, the Program has set forth in greater detail the materials needed to complete the medical review of each claim. If relevant records on this list are not provided with the petition, the medical review, and therefore processing of the claim, may be delayed.
The following medical records should accompany the petition filed with the Court and the Secretary.
- Prenatal and Birth Records
-- Mother's prenatal record
-- Delivery record
-- Birth Certificate
-- Newborn hospital record including physicians/nurses notes, radiology/laboratory results - Medical Records Prior to Vaccination
-- Vaccination record (including lot # and manufacturer, if available)
-- Clinic notes (such as Well Baby visits)
-- Private physician visits
-- Growth charts/laboratory/radiology results - Post-Injury Hospital/Emergency Treatment Records
-- Admission/discharge summaries
-- History and physical records
-- Progress notes including physician/nurses notes
-- Medication records
-- Laboratory/radiology/EEG results
-- Flow sheets (respiratory care/treatments) - Post-Injury Outpatient Records
-- History and physical records
-- Progress notes (including physicians/nurses notes)
-- Medication records
-- Laboratory/radiology/EEG results
-- Clinic notes
-- All evaluations - Vaccine Adverse Event Report form (if submitted)
- Long Term Records
-- School records
-- Consultation reports and evaluations - Death Records
-- Death Certificate
-- Autopsy report (if done)
-- Autopsy slides
*Note: Numbers 1 and 6 may be omitted for adult compensation claims.