Vaccine Injuries and the Statute of Limitations

A Brief History

On Oct. 1, 1988, the National Childhood Vaccine Injury Act of 1986 (42 U.S.C. Sections 300aa-1 to 300aa-34) created the National Vaccine Injury Compensation Program (VICP). The VICP was established to ensure that an adequate number of vaccines were produced, that vaccine costs would stabilize, and that an accessible and efficient forum for individuals found to be injured by certain vaccines was established to remedy those injuries. The VICP is a no-fault alternative to the traditional tort system for resolving vaccine injury claims that provides compensation to people found to be injured by certain vaccines.

There are three federal government offices that play integral roles in litigating VICP cases: the U.S. Department of Health and Human Services (HHS), the U.S. Department of Justice (DOJ), and the U.S. Court of Federal Claims, which adjudicates the claims.

The National Vaccine Injury Compensation Program is funded by the Vaccine Injury Compensation Trust Fund and it compensates all vaccine-related injuries or deaths for covered vaccines administered after Oct. 1, 1988. However, not every vaccine that is manufactured is covered by the VICP. The trust fund is funded by a $0.75 excise tax on all vaccines that are recommended by the Centers for Disease Control and Prevention for routine administration to children. The excise tax imposed is based on the number of diseases that the vaccine is designed to inoculate against. For example, the measles, mumps and rubella vaccine, which is manufactured and administered to inoculate against all three diseases, is taxed at $2.25 per vaccine. Each influenza vaccine is taxed at $0.75 per dose. This tax is collected by the Department of the Treasury, which also manages the Trust Fund's investments of the excise tax.

The HHS and the Health Resources and Services Administration publishe the Vaccine Injury Table that lists all of the vaccines that are covered within the VICP. On occasion, the table will go through proposed rule changes through the federal register in order to add or subtract various vaccines or injuries that are listed.

Vaccines that are currently listed on the Vaccine Injury Table are those for:

• Tetanus (DTaP, DTP, DT, Td, or TT);
• Pertussis (DTP, DTaP, P, DTP-Hib);
• Measles, mumps and rubella (MMR or any variants);
• Polio virus;
• Hepatitis A;
• Hepatitis B;
• Hemophilus influenza type b (Hib);
• Varicella;
• Rotavirus;
• Pneumococcal disease (pneumococcal conjugate);
• Rivalent influenza;
• Meningococcal meningitis; and
• Human papillomavirus (HPV).

In order to file a case within the VICP, the injured person must have received one of these vaccinations.

Ethical Considerations

Representing those injured by vaccines may be foreign type to many, but all lawyers understand that they have an ethical obligation to provide competent representation to a client. While vaccine litigation requires specialized skills and experience in order to effectively represent an injured party, all attorneys must employ the requisite legal skills when analyzing a legal case. Licensed attorneys must be able to analyze precedent, evaluate evidence and review legal drafting, skills that are required in almost all legal problems.

The most fundamental legal skill of any attorney consists of determining what kind of legal problems a situation may involve and knowing where to turn for answers. These are skills that necessarily transcend any particular specialized knowledge, and in the current era of practicing law we are armed with tremendous technology and resources to find these answers. Perhaps the most fundamental legal skill that every attorney must possess is determining the applicable statute of limitations for a given case. Often, the statute of limitations can be determined very easily with basic research, so long as you know what you are looking for.

Statute of Limitations For Vaccine Cases

Every day, attorneys vet and screen potential legal cases to determine causes of action, potentially liable parties, and applicable defenses in order to properly advise potential clients. For the purposes of this discussion, let us consider following fact pattern: An adult woman from Pennsylvania calls a Pennsylvania law firm and states that she had an influenza vaccination the previous fall. Two weeks after she received the vaccine, she was diagnosed with an autoimmune disease called Guillain-BarrÉ Syndrome, the symptoms of which began a week after the vaccination. She didn't realize that there may be a correlation between the influenza vaccine and her disease until a few days before calling the law firm, because none of her doctors told her that the influenza vaccine could be the cause of her disease.

At first glance, one may screen a vaccine injury case and analyze it as a product liability case; a case of that type would be subject to the two-year statute of limitations in Pennsylvania, pursuant to 42 Pa.C.S. Section 5524. The next natural inclination would be to apply the discovery rule — starting the limitations clock at the time your potential client learned that Guillain-BarrÉ Syndrome can result from influenza vaccination and that this might be the cause of her own illness — to allow for more time to work up the case by obtaining the necessary documents and medical records and retaining supportive experts.

These are precisely the assumptions that can land attorneys in hot water and subject to legal malpractice actions.

If the attorney was familiar with the VICP, he or she would immediately know that the VICP does not allow for any type of discovery rule to apply in circumstances similar to the aforementioned fact pattern. The statute of limitations in vaccine injury cases is also not state-specific. Since the jurisdiction of these cases is with the U.S. Court of Federal Claims in Washington, DC, a global statute of limitations of three years from the first manifestation of symptoms governs all VICP cases. 42 U.S. Code Section 300aa-16(a)(2). If the vaccine-injury is a death, then the statute of limitations is two years from the date of death or four years from the first manifestation of symptoms that resulted in the death.

The next question you may be asking is, “What about minors? Don't there have to be minors?” The answer is, “No.” Perhaps the most perplexing aspect about the VICP is that it was created by the National Childhood Vaccine Injury Act (42 U.S.C. Sections 300aa-1 to 300aa-34), yet it fails to offer the maximum amount of opportunity to minors who may have been injured by vaccines to seek legal recourse even if their parents or other guardians neglected to do so.

Conclusion

Vaccines are a tremendous scientific and medical achievement that have helped diminish or even eradicate all kinds of dangerous and debilitating diseases. Despite their clear benefits, it is undeniable that vaccines can cause adverse events and injuries in a very small percentage of the population. These cases are rare, yet they may present themselves when you least expect them. When and if this happens, it is critical to understand the basic, yet unique, statute of limitations requirements for these cases so that potential clients can be advised of their options, before it is too late.

***** David J. Carney is an associate at Anapol Weiss. This article also appeared in The Legal Intelligencer, an ALM sibling publication of this newsletter.