By David J. Carney, Esquire
This fall, massive and unprecedented efforts have been launched by biotechnology companies and scientific research laboratories to develop a viable and safe COVID-19 vaccine in record time. Currently, there are nine COVID-19 vaccines that are in phase-three clinical trials, which is the most critical phase in getting a vaccine to market. At this point, it is anyone’s guess as to which vaccine will be first to market, but experts agree that a variety of vaccines will be necessary to stop the pandemic and prevent future outbreaks across the globe.
In general, vaccines are designed to trigger the immune system into fighting off diseases. Vaccines have been critical in eradicating deadly diseases across the globe and in preventing outbreaks where a disease has originated. In rare instances, however, vaccines can put one’s immune system into overdrive and cause the body’s immune system to attack itself through what is called an autoimmune disease. This reaction is usually through no fault of the vaccine, but is an unfortunate consequence that some individuals get to a vaccine. With potentially hundreds of millions of people getting vaccinated against COVID-19, it is likely, even a guarantee, that a small percentage of people will have adverse outcomes to the vaccine despite it passing safety tests.
Amid the rapid development of COVID-19, polling through Pew Research Center has revealed that as of September 13, 2020, approximately half of Americans say they will not get a COVID-19 vaccine. Of this percentage, 76% cite potential vaccine side effects and uncertainty as major reasons why they would forgo receiving the vaccine.
Despite these alarming statistics, Congress and the Department of Health Human Services (HHS) have planned to subject any injuries from a future COVID-19 vaccine to the Countermeasures Injury Compensation Program. However, this program, which has only paid out 39 claims totaling $5.7 million since it began in 2009, is extremely limited in that it fails to compensate for pain and suffering and will not pay for the victims’ attorneys’ fees. The only compensation available to injured victims would be lost wages and unpaid medical expenses.
Congress and HHS have another compensation program, the National Vaccine Injury Compensation Program (NVICP), that would fairly evaluate potential COVID-19 injuries and compensate eligible victims. The NVICP is funded through an excise tax on vaccines, and manufacturers of the vaccines are protected from liability (an excise tax is a legislated tax on specific goods or services at purchase). In the last five years alone, the NVICP has resolved 3,221 claims and paid out $1.05 billion to those injured from certain vaccines (i.e. the influenza and TDaP vaccines).
Given the rapid research and development of the COVID-19 vaccinations, it is inevitable that some individuals who receive the vaccine will suffer an adverse reaction. In fact, one of the participants in the phase-three clinical trial suffered from transverse myelitis after receiving AstraZeneca’s COVID-19 vaccine. In the middle of a pandemic, Congress and HHS would gain more public trust and confidence if they provided access to the National Vaccine Injury Compensation Program to those who suffer adverse events from the COVID-19 vaccine so that they can be justly compensated for their pain and suffering, lost wages, medical expenses, and attorneys’ fees.
David J. Carney, Esquire is a partner at Green & Schafle, LLC who focuses his law practice on representing individuals who have been injured by vaccines. He is currently the Vice President of the Vaccine Injured Petitioners Bar Association, the legal organization dedicated to representing injured victims.
A West Point graduate where he served as captain and military aviator, John Bair continues his commitment to our country through his efforts within the settlement planning industry. He has represented families of victims lost in the Flight 3407 crash, offered pro bono services to the families of 9/11 victims and drafted the first consumer protection bill for plaintiffs (H.R. 3699).