Tag Archives: vaccine court

Vaccine Court:(New) Attorney Fees-may not be paid if vaccine injury case is lost

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Good Faith and a Reasonable Basis

The answer to the third question to compensate attorneys, even when their clients were not compensated by the NVICP, is a devilish debate and where the special masters try to hold a hammer over the attorneys.

I wonder how many times the following statement has been whispered or inferred within the discussion of attorney fees, “You must play ball, or we will not compensate you for your work now and possibly in the future?” The statute allows for payment, yet the devil is in the details.

Within the NVICP, attorneys shall be compensated for fees and expenses when a client is successful with their petition for compensation from an injury or death. [6]

When a petitioner is not successful, the Special Masters can award attorney fees and expenses at their discretion. [7]

And this is where it gets very tricky, and recently, this is where we start to lose our ability to obtain legal counsel to represent our claims within the NVICP.

The Special Master uses his/her discretion to award fees using the Good Faith and Reasonable Basis standard.

Even if a petitioner is not awarded “compensation,” the special master “may award an amount of compensation to cover petitioner’s reasonable attorneys’ fees . . . if the special master or court determines that the petition was brought in good faith and there was a reasonable basis for the claim for which the petition was brought.”[8]  READ MORE…

Clarification of who is covered under the 1986 National Vaccine Injury Compensation Act

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To clarify a few aspects for anyone who is still unclear on the court/compensation bifurcation of the 1986 Act:  Tom Stavola “Freedom and Ethics Alliance”

1. Any vaccine recommended for routine administration for children, or adults and children, is “covered” (must go through the NVICP). Shingles/Herpes Zoster vaccine is adult recommended only, and so one can utilize the court systems for this vaccine.
2. In order to sue in state courts, one must first use the NVICP. After the program has made a decision, the petitioner can choose to sue in state court. However, the 2011 Supreme Court Bruesewitz V. Wyeth – the unavoidably unsafe case – precludes petitioners from suing vaccine manufacturers for product design defects, even after going through the NVICP. One can; however, sue the vaccine manufacturer for fraud, for example.
3. In order to sue doctors in state courts, one must first use the NVICP, then you may decide to sue in state court with one of two claims: 1) medical malpractice; or 2) lack of informed consent. It’s typically almost impossible to be successful with either claim; however, you may have a slightly higher probability of winning “lack of informed consent” if one wasn’t provided the Vaccine Information Statement.
4. The 21st Century Cures Act pushes all claims related to death of unborn child into the NVICP, since this was a legal loophole prior to 2016 (which many were capitalizing on).
5. The proposal for amending the Vaccine Injury Table essentially allows the CDC – as Wayne mentioned heretofore – to direct any new recommended vaccines for pregnant women onto the Vaccine Injury Table. Thus, there will be no opportunity to sue in state court for new recommended vaccines, but if one experiences an adverse event that falls into the strict constraints of the vaccine injury table, your probability of compensation is significantly increased. Of course, for any non-table injury, proof of causation is much more arduous.

VLA Comment:  The 1986 act gave immunity to all vaccine providers and directed compensation claims to special masters at the vaccine court.  The funding for compensation and court comes from an excise tax to the consumer per vaccine.  In other words those who are potentially harmed are paying into the fund.  It is not funded by the manufacturers or government.