Did A Flu Shot Make You Sick?
NOVEMBER/DECEMBER 2016
| TAMPA BAY MAGAZINE 93
By Robert V. Potter, Jr. and Eric J. Brooks
It’s that time again. Fall brings us cooler weather,
earlier sunsets, and—the flu shot. Millions of people receive
the seasonal influenza vaccine every year. The vast majority
suffer no ill effects. A small number, however, experience
severe side effects. Fortunately, a little known federal
program compensates those injured by
vaccines, including the flu vaccine.
In the 1980s, the federal
government established the National
Vaccine Injury Compensation Program.
The Program provides a no-fault system
for those seeking compensation for
any serious vaccination side effects. A
person injured by a vaccine is required
to first attempt to recover under the
program before pursuing another party via a civil suit. The
Program operates in a markedly different fashion than the
traditional legal system and it is often advisable that an
injured party engage a lawyer to navigate the Program with
them.
First, a petition must be filed with the U.S. Court of
Federal Claims. The petition sets out the basic facts of the
petitioner’s claim: the vaccine, date of vaccination, date of
injury, and detailed descriptions of the nature and extent of
the injury and the symptoms. Supporting documentation
from healthcare providers, both pre- and post-vaccination,
must be gathered, organized, and persuasively presented as
part of the petition process. In many cases, expert medical
reports may be necessary. The records required will vary
depending on the particular circumstances of the injury or
condition. It is critical that a person who believes he or she
may have been injured by vaccine keep all related medical
and financial records.
Once all the information is submitted to the court, the
U.S. Department of Health and Human Services (HHS)
reviews the submittal. If the agency is satisfied all necessary
information has been provided, the petition proceeds through
the two primary phases of the Program—entitlement and
damages. Once a petition is submitted, the petitioner and
HHS may also choose to pursue a settlement at any stage of
the Program.
A Special Master (the “judge” in vaccine cases)
must determine whether the petitioner has demonstrated
entitlement to compensation from the Program. Some
vaccine-caused injuries are recognized by HHS, but the
majority are not. Those petitioners suffering non-recognized
vaccine injuries or conditions will have to convince the
Special Master it is more likely than
not that the vaccine caused his or her
injury. This is achieved by presenting a
medical theory connecting the vaccine
to the injury, a logical cause-and-effect
sequence between the vaccine and the
injury, and evidence that the injury
occurred within the appropriate time
frame after vaccination.
Once causation has been
established, petitioners are entitled to four categories of
compensation under the Program: pain and suffering
(maximum of $250,000), 100% of lost wages, 100% of
past out-of-pocket non-reimbursable medical expenses, and
100% of actual future non-reimbursable medical expenses.
Detailed supporting documentation is required to establish
damages. In complicated cases this can require experts such
as economists or life care planners.
Petitioners are not responsible for attorneys’ fees
and attorneys’ fees are not deducted from any award they
receive. The Program specifically prohibits attorneys from
charging the petitioner an hourly or contingent fee. Instead,
petitioners’ attorneys apply directly to the Program for
payment.
Vaccine-related side effects are very rare. In terms of the
flu vaccine alone, HHS calculates that 1,078,000,000 doses
were administered between January 1, 2006 and December
31, 2014, but only 1,573 petitions were filed. Some form
of compensation was paid in 1,363 of those cases. So be
healthy, be safe, get your flu shot, but know what to do if
you or a loved one suffers a severe side effect.
Robert Potter and Eric Brooks are attorneys with Johnson Pope
Bokor Ruppel & Burns, LLP and can reached at (727) 461-1818,
911 Chestnut Street, Clearwater, FL 33756 - or
BobP@jpfirm.com, EricB@jpfirm.com
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