A vaccine injury claim is initiated by filing a petition with the Court of Federal Claims in Washington, D.C. The person injured by the vaccine is called the petitioner.
Once the petition is filed, a Special Master is assigned to the case. A Special Master is a specialized judge that handles only vaccine injury claims. The Special Master decides the outcome of the case instead of a jury.
The Department of Health and Human Services (“HHS”) oversees the Vaccine Injury Trust Fund. Therefore, HHS acts as the defendant in these cases. HHS reviews the petition and decides whether to dispute the claim. In many cases, HHS will concede that the vaccine caused the injury, illness, or reaction.
WHO CAN FILE A CLAIM
You may also file an injury claim if you are a parent or legal guardian of a child or disabled adult who received a vaccine covered by the VICP and believe that the person was injured by this vaccine.
You may file a claim if you are the legal representative of the estate of a deceased person who received a vaccine covered by the VICP and believe that the person’s death resulted from the vaccine injury.
There is no citizenship requirement. You may file an injury claim even if you are not a United States citizen.
In addition, to be eligible to file a claim, the effects of the person’s injury must have:
- Lasted for more than 6 months after the vaccine was given
- Resulted in a hospital stay and surgery
- Resulted in death.
TIME LIMIT FOR FILING A CLAIM
The statute of limitations (“SOL”) requires that your claim must be filed within three (3) years from the date of onset of symptoms. However, to be safe, our firm recommends that you file no later than three (3) years from the date of your vaccination. In the event of a vaccine-related death, a claim must be filed no later than two (2) years from the date of death.
PROVING A VACCINE INJURY CASE
Our lawyers must prove that:
- The injured person received a vaccine listed on the Vaccine Injury Table
- That the vaccine caused the injury
Medical records are the primary tool for proving a claim. We will collect all of the medical records prior to filing the claim. In some cases, it is necessary to retain a medical expert to write a report supporting the claim. We have relationships with several medical experts across the country that we utilize to bolster our claims. If the claim goes to trial, these experts are well-versed in testifying before the Special Master.
If our client missed work due to the injury, or will miss work in the future, we may retain a specialist called a vocational expert to testify regarding the lost wages.
In cases where our client suffers from a condition which will require future treatment or care (such as a nurse aide) we retain an expert called a “life care planner” that will project the estimated costs. We will then demand those costs be compensated as well.
If HHS does not concede the causation and damages issues of your case, your case could go to trial. While the majority of our cases settle prior to trial, a trial is still a possibility. However, in the event your claim does go to trial, it will not resemble a traditional civil trial. Generally, the Court will try to accommodate you by having the hearing at a federal courthouse near your residence. The hearing will often be held via video-conference. Following the trial, the Special Master will decide your case.
For a more detailed explanation of the litigation procedure and trial procedure, call our vaccine injury attorneys for a free consultation.
HOW LONG DOES THE ENTIRE PROCESS TAKE?
This process is designed to be quicker than civil litigation. With some exceptions, it usually is. A hearing on whether the vaccine caused the injury often occurs within a year. Cases that settle can conclude in as little as six months. Other parts of the VICP are extremely cumbersome and can take a long time. For example, once a case is settled, it usually takes six months or more to receive the settlement monies.
THE ROLE OF THE LAWYER
We highly recommend that you hire a lawyer and not attempt to represent yourself in the National Vaccine Compensation Program. Hiring an attorney comes at no cost to you because the fund pays for all legal fees. The National Vaccine Injury Compensation Program is often a very difficult, contentious, and complex process often involving complicated legal, medical, and factual issues. You need an attorney who knows how to prepare a VCIP petition.
TYPES OF COMPENSATION AWARDED
The Vaccine Injury Compensation Program provides compensation for three different categories of damages:
- Out of pocket medical expenses
- The Vaccine Program will pay for past and future out-of-pocket medical expenses. The program will not reimburse an injured person for the portion of medical bills paid by insurance. The expense may include custodial care (such as a home health aide) rehabilitation costs, medication, equipment, or other related expenses. There is no limit on the amount a person with an injury may be paid for these types of expenses.
- Pain suffering up to $250,000.00
- Past or future lost earnings