A week from today, the US Supreme Court is going to hear arguments in Bruesewitz v. Wyeth, a case about vaccine injury. At issue in this case is whether vaccine manufacturers can be directly sued in a normal court for injuries that are caused by their products.
Flickr Photo by dbking
In you are interested in the details of the case or actual filing in the case, I recommend this excellent resource which is maintained by SCOTUS blog.
As matters stand now, almost all claims of vaccine injuries must be filed with the National Vaccine Injury Compensation Program, more commonly known as vaccine court. This is a special venue that was created by the National Childhood Vaccine Injury Act of 1986 and was meant to be a no-fault, swift, flexible, and less adversarial alternative to the traditional court system. But this venue is not a the traditional court system and the rules it operates under can be quite different.
When you submit a claim with this program, the vaccine manufacturer is not the defendant (or respondent) but rather the federal government. And if you win your claim, it is not the vaccine manufacturers that pays for the damages but rather other people like you. Let me explain that last part as it can be a little confusing. Every time a vaccine is administered, a surcharge is added to the cost of the vaccine and is paid by whoever is paying the medical bill (such as an insurance company). These surcharges are then collected by the government and any awards made by the vaccine compensation program are paid using these funds.
Or to put this in simple terms, a vaccine manufacturer cannot be sued for harm caused by their product nor are they financially liable for damages. Regardless of where you stand on the possible link between autism and vaccines, I think we can all agree that absolving an entire industry of liability is not the best of ideas and is just asking for problems.
There might have been valid reasons for setting up this situation back in 1986 when the supply of vaccines were very much in doubt. Back then, vaccine manufacturers were facing a large number of law suits (although very few of them successful) and were threatening to pull out of the market entirely. Fast forward to today and the vaccine market is considered a growth market, with billions in dollars of revenue (e.g. Merck alone booked almost 1.4 billion dollars in revenue from the sale of vaccines in 2009).
When you file a claim with the so-called vaccine court, your claim is handled in several different ways, depending on the exact nature of the injury. If the injury is a commonly accepted one (i.e table injury) then your claim will be awarded quickly. If it is not, your case is heard by a special master and you have to prove that the vaccine caused the injury.
After following the the doings of the vaccine court for several years, I think I can safely say that the program is not living up to what it was supposed to be. Rather than the program being a swift alternative to the traditional courts, claims filed with this program can take many years to resolve - even for simple claims. And, as anyone who followed the autism omnibus proceedings can tell you, the process in the court is anything but "less adversarial".
This so-called court also seems to have a major aversion to using the word "autism" and vaccine together. If you claim that your child has a vaccine injury as well as autism, the chance of you winning your claim is almost non-existent.
Even worse, in the few cases were the court has awarded damages when autism is involved, they have gone well out of their way to avoid making it seems like there could be any possible relation. For example, in the Hannah Polling case, the documents make reference to "features of autism" rather than autism directly. And even more telling, in the case of Bailey Banks, the special master actually created a new condition - "non-autistic" PDD-NOS.
For anyone who has half a brain and understands the terminology involved, that phrase is like saying "non-wet" water or a non-automobile car. PDD-NOS is, by definition, a form of autism and you cannot simply say that it isn't autism because we happen to know what caused it.
Just as a side note, while I don't think that vaccines leading to autism is all that common, if you don't think it is possible at all, go look at the Hannah Poling case. Done? Ok, save the "yes, buts" and just accept the fact that it can happen. Even if we are only talking about this happening to 0.1 % of all children with autism, that would still be 40 children per year in this country alone.
The vaccine compensation program is operating without much oversight from the traditional court system and is basically being run by the same governmental organizations that are responsible for promoting vaccine use. This arrangement gives the phrase "conflict of interest" a whole new meaning. And, if you thing that the Special Master made any factual errors in the case or didn't consider the evidence properly, you are pretty much out of luck. As the US Court of Appeals for the Federal Circuit said in their recent ruling in the Cedillo case (starting on page 10)-
We review the Special Master’s factual findings using an “arbitrary or capricious” standard. We “do not sit to reweigh the evidence. [If] the Special Master’s conclusion [is] based on evidence in the record that [is] not wholly implausible, we are compelled to uphold that finding as not being arbitrary or capricious.” Our role is not to “second guess the Special Master[’]s fact-intensive conclusions” particularly in cases “in which the medical evidence of causation is in dispute.”It will be interesting to see where this case goes. I suspect that the Supreme Court is going to uphold how the law is currently being interpreted, which means that it would be up to Congress to make any needed changes in how the program operates.
Time will tell.