The National Vaccine Injury Compensation Program (“NVICP”) was established by Congress in 1986 to protect persons injured by vaccines. At the time the law was passed, some pharmaceutical companies were considering reducing or eliminating their production of certain vaccines in response to lawsuits brought against the companies. Congress passed the law establishing this program to ensure a continued supply of these vaccines. The NVICP is a “no fault” program in which individuals who qualify to bring a claim do not need to prove that a vaccine was defective or that the manufacturer was negligent, only that certain recognized injuries were sustained close in time to the administration of a vaccine covered by the Program.
In order to receive an award under NVICP, an individual must demonstrate that he has received one of the vaccines listed as a covered vaccine and that he has sustained an injury within a specified period of time. If both are established, then it is presumed that the vaccine caused the injury. Those include:
- Diphtheria (e.g., DTP, DTaP, Tdap, DT, Td, TT)
- Haemophilus influenza type b polysaccharide conjugate vaccines (e.g., Hib)
- Hepatitis A (e.g., HAV)
- Hepatitis B (e.g., HBV)
- Human papillomavirus (e.g., HPV)
- Seasonal influenza (e.g., Flu)
The injured party may file a claim for compensation if the injury lasted for more than six months following the vaccination, resulted in an inpatient hospitalization and surgical intervention, or resulted in death. There are time limits on filing to recover under the NVICP, ranging from as short as two years to as long as eight years. It is always important to check any time limits that might affect your ability to make a claim for any injury.
If the vaccine believed to have caused an injury is one listed as a covered vaccine under NVICP, the injured party may not pursue a claim through the tort process in the courts until he has begun the NVICP process. He may thereafter elect to exit the program, but there are highly specific guidelines and procedures for doing so.
In order to make a claim under the NVICP, an individual, either on his own (known as “pro se”) or through an attorney must file a petition with the U. S. Court of Federal Claims. A filing fee, $400.00 at the date of publication, is required, although that can be waived under certain circumstances. A list of attorneys who specialize in working with petitioners and the program is maintained by the Court.
Once the petition has been filed, medical staff from the U. S. Department of Health and Human Services (HHS) will review the petition to see if it meets the requirements of the NVCIP and make a recommendation. A staff member from the U. S. Department of Justice will consider the legal aspects of the claim, and prepare a report for the U.S. Court of Federal Claims that also include the medical recommendation from HHS. A “special master” appointed by the Court will usually hold a hearing for both the petitioner and the government to present evidence, following which the special master will make a decision on whether any compensation should be made and, if so, the amount. This judgment would be paid by the HHS. Petitioners who are unhappy with the special master’s decision can appeal.
As with many government programs, there are specific deadlines that must be met under the NVICP. It is highly recommended that anyone considering filing a claim under the Program consult an attorney who specializes in such claims at an early date to make sure that no critical deadlines are missed.