What is a vaccine injury claim?

Vaccines are vital to public health but can in rare cases cause illnesses and injuries. The Vaccine Injury Compensation Program compensates victims of vaccine injuries.

What are vaccine injuries?

A vaccine injury is a negative medical reaction to a vaccine, causing or aggravating an injury or illness, or death. I tell clients that it’s like lightning striking someone. It is rare and random but when it happens, it is devastating.

What is the Vaccine Injury Compensation Program (VICP)?

The Vaccine Injury Compensation Program, or VICP, is an injury claim program created by Congress through the National Vaccine Act (42 U.S.C. §§ 300aa-10 et seq.). Victims of vaccine injuries can file claims in the U.S. Court of Federal Claims. If the claimant proves their entitlement and damages, the Court can award financial compensation.

How do I know if I have a vaccine injury claim?

Your doctors may tell you about a connection between your medical condition and a recent vaccination. Sometimes, however, patients make the connection on their own after developing a new illness days or weeks after receiving a vaccination.

The VICP’s Vaccine Injury Table sets out which injuries and illnesses are associated with which vaccines. The Table also sets out the required timeframes from vaccination to onset of symptoms. Not every vaccine is on the list, and not every medical condition that may have a vaccine connection is on the list.

No vaccine injury is common, but the most frequent vaccine injuries The Law Office of Koby Kirkland handles include shoulder injury related to vaccine administration (SIRVA) and Guillain-Barré Syndrome (GBS) after the flu vaccine. We have also represented claimants with vaccine injury and death claims involving Intestinal Intussusception, infection and septic arthritis, and multifocal motor neuropathy.

What are Table Claims and Off-Table Claims?

There are two types of VICP vaccine injury claims: Table Claims and Off-Table Claims. Table Claims are claims that meet all the requirements of the Vaccine Injury Table–the vaccine is listed on the Table, the illness or injury is listed with the vaccine, and the symptoms arose during the time specified. Below is an excerpt from the Table.

Off-Table Claims are claims that do not satisfy all criteria of the Vaccine Injury Table. For example, the illness or injury at issue is not listed on the Table, or the symptoms started outside the specified time window. You may still bring the claim, but it will be an Off-Table Claim.

Generally, Table Claims are easier to pursue, more likely to award compensation, and faster to process than Off-Table Claims. In Table Claims, causation is presumed, meaning that you do not have to prove the vaccine caused your injury. By contrast, in Off-Table Claims, causation must be proven, usually with the help of medical experts and literature. Off-Table Claims are often contested or opposed by the Respondent (defendant), the Secretary of Health and Human Services. This can delay the claim’s resolution.

What is the process of a vaccine injury claim?

The general process of a VICP claim can be broken into three parts: (1) Gathering Records, (2) Drafting and Filing the Vaccine Injury Petition, and (3) Claim Processing.

(1) Gathering Records. The VICP requires claimants to submit all medical records going back 3 years prior to the vaccination at issue, and all medical records since the vaccination. This can be a difficult, time-consuming process. It is better to submit all required medical records up-front when the claim is filed instead of adding medical records later. Late medical records cause delay.

(2) Drafting and Filing the Vaccine Injury Petition. After all the medical records are gathered, they are used to draft a Vaccine Injury Petition. The Petition is filed in the U.S. Court of Federal Claims. A good petition not only satisfies the VICP’s unique legal requirements, but is detailed and comprehensively walks the reader through the claimant’s vaccine injury, medical treatment, and current condition. Citations to supporting medical records should be included.

(3) Claim Processing. Once the Petition is filed, the Court of Federal Claims makes sure all the required supporting documents are included. Then the Respondent (defendant) reviews the filing and declares whether it will contest the claim or not. If a claim is not contested, it may settle relatively quickly. But if HHS fights, the claim may require additional medical records, expert testimony, and court involvement.

The claim process is bifurcated. First, the Court decides entitlement–whether a claimant has proved the vaccine caused their injury. Second, only after entitlement is decided, the Court addresses victim compensation.

What can I get for my vaccine injury claim?

Monetary compensation is awarded to claimants who prove entitlement. Compensation can be paid for noneconomic damages like pain and suffering, disability, and disfigurement, and wrongful death. Economic damages like out-of-pocket medical expenses and lost income are also compensated.

Noneconomic damages are legally capped at $250,000. Payment to survivors of vaccine death claimants is also capped at $250,000. Past and future medical expenses can be paid, but they are limited to what claimants pay out-of-pocket. What health insurance or Medicare/Medicaid has paid or will pay is not included.

How long do I have to bring a vaccine injury claim?

The statute of limitations, or legal deadline to bring a claim, for vaccine injury claims is 3 years from the the date of onset of symptoms. For vaccine death claims, the statute of limitations is 2 years from the date of death AND 4 years from the date of onset of symptoms.

Unlike other cases, there is no tolling or extra time for minors or people who did not know their condition was vaccine-related.

How long does the claims process take?

Vaccine injury claims often take years to resolve. Gathering and reviewing medical records, drafting and filing detailed claim documents, and waiting for the Respondent and Court’s responses all take time.

Table Claims are resolved much quicker (we’ve settled them in less than a year after filing) than Off-Table Claims. Off-Table and contested claims take longer because they often require expert witnesses and more court involvement.

Is the COVID vaccine covered by the VICP?

No. The COVID vaccine is not covered by the VICP. At least not yet, although the COVID vaccine could be added to the VICP at some point. Currently, claims for injuries from the COVID vaccine fall under the Countermeasures Injury Compensation Program (CICP). The CICP is a completely separate program with different rules than the VICP. For more details, see our COVID-specific blog post.

What will filing a vaccine injury claim cost me?

Nothing. If a lawyer represents you, the lawyer should cover all case expenses. The lawyer is paid by the VICP itself after the claim is finished, not from a portion of the claimant’s recovery. There is no contingency fee.

How do I get started?

Claimants are not required to have a lawyer to file a vaccine injury claim. That said, involving a lawyer who is experienced with the VICP can produce great results. Representation also relieves the injured victim of the burden of litigating their own case.

Because vaccine injuries are rare, few attorneys handle vaccine injury claims. The U.S. Court of Federal Claims itself issues a list of attorneys who practice in the VICP. Vaccine injury VICP claims are a primary practice area of The Law Office of Koby Kirkland. Because I am admitted to practice in the U.S. Court of Federal Claims, I am able to represent vaccine injury claimants nationwide. If you or someone you know suffered a vaccine injury and want to know more, contact us. You can send a message through our website, call us at (251) 210-9158, or email to admin@kobykirklandlaw.com.