A ‘black hole’ for COVID vaccine injury claims

A ‘black hole’ for COVID vaccine injury claims

REUTERS

Altom Maglio says his law firm in recent years has litigated more vaccine-related injury claims than any other in the United States.

But 22-lawyer Maglio Christopher & Toale on its website has a discouraging message for would-be clients who believe they’ve suffered a serious injury from the COVID-19 vaccine.

“Our law firm has concluded that there is nothing our attorneys can do to significantly assist you,” the firm states.

Maglio told me his Sarasota, Florida-based firm has been “contacted by at least a couple hundred people” about suspected COVID vaccine-related injuries, including blood clots and cardiac inflammation.

It’s not that his firm doesn’t want to help. Representing people who’ve had (rare) major adverse reactions to vaccines for tetanus, measles, hepatitis, influenza and a dozen other shots is its bread and butter.

But the current system for handling COVID-related claims is different – and not in a good way. Because if you’ve suffered an injury related to the Pfizer, Moderna or Johnson & Johnson vaccines, you’re basically out of luck.

As Renée Gentry, director of the Vaccine Injury Litigation Clinic at the George Washington University Law School put it, COVID vaccine claimants have two rights: “You have the right to file,” she said. “And you have the right to lose.”

At a time when the government is urgently trying to convince 70% of the eligible population to get vaccinated before the highly contagious Delta variant takes hold, it seems distinctly unhelpful to deny due process -- no judge, no judicial appeal and no transparency-- to the unlucky few who react badly to the jabs.

To be clear, I’m no anti-vaxxer. I couldn’t get a shot in my arm fast enough this spring once I became eligible. Being vaccinated meant hugging my parents and (mostly) ditching my mask -- and no longer worrying that every sniffle presaged dying alone hooked up to a ventilator.

The Centers for Disease Control and Prevention credibly stresses that the COVID vaccines are safe and “will continue to undergo the most intensive safety monitoring in U.S. history.”

And the vaccine makers in a joint statement pledged to "Always make the safety and well-being of vaccinated individuals our top priority."

Still, more than 317 million doses have been given in the United States since December 2020, according to the agency.

With numbers that big, a few bad reactions are inevitable, regardless of what’s being administered. “Even if it was baby aspirin,” Maglio notes, “someone would have an adverse reaction.”

Which means we can assume a small number of people who got COVID-19 vaccinations suffered an injury as a direct result.

The question is, what to do about it?

Since 1988, the government has run a special, no-fault tribunal housed within the U.S. Court of Federal Claims, the Vaccine Injury Compensation Program (known colloquially as “vaccine court”), to handle injury claims for 16 common vaccines. Payouts (including attorneys’ fees) are funded by a 75-cent tax per vaccine.

I’ve written about the court before, and plaintiffs' lawyers in the past have expressed their share of complaints. The $250,000 cap on awards for pain and suffering is too low. The proceedings often turn into drawn out, contentious expert battles. The backlog of cases is substantial.

“We didn’t know how good we had it,” Maglio said. The vaccine court “is not without problems, but it does work, and people do get compensation.”

But that’s not where COVID vaccine claims are being adjudicated. Instead, at least for the time being, they’ve been relegated to an even more obscure forum, the Countermeasure Injury Compensation Program, or CICP, run by the Health Resources and Services Administration.

 

Both Maglio and Gentry use the same phrase to describe the program: “A black hole.”

A public affairs officer for the HRSA, which is part of the Department of Health and Human Services, did not respond to a request for comment.

The agency’s website outlines the parameters of the program, which is authorized by the Public Readiness and Emergency Preparedness (or PREP) Act. In March 2020, then-Health and Human Services Secretary Alex Azar added COVID claims to it. Coverage includes vaccines as well as injuries stemming from other “countermeasures” used to treat the virus, such as medications and devices.

It’s telling to look at the nine other “public health emergencies and security dangers” covered by the program, including Ebola, anthrax, Marburg and acute radiation syndrome. None are what you’d call common afflictions.

And then there’s COVID, where 180 million people in the U.S. have received at least one shot.

The program provides compensation for medical expenses, lost employment income and survivor death benefits as “the payer of last resort,” covering only what remains unpaid or unpayable by other third parties such as health insurance.

Except historically, almost no one gets anything. Since the program’s inception in 2010, only 29 claims have been paid, with an average payout of around $200,000. (Ten additional claims won approval but were deemed ineligible for compensation.)

The other 452 claims -- 91.4% -- were denied.

As of June 1, the program reports that 869 cases are pending but offers no further details. Given the lack of, say, current Zika or smallpox outbreaks, it’s probably safe to assume that most or all are COVID-related.

Gentry is not optimistic that any will be approved. Because the vaccine is so new, there’s no definitive research on injuries caused by the vaccine, she said. Which means that when the claims land on someone’s desk at HRSA, that person “can do their job and look at the ‘research’ and everyone loses.”

The solution to her is obvious: Move the COVID claims to vaccine court. Cases there are decided by experienced special masters, the U.S. Justice Department already has a division of torts branch lawyers who focus on such litigation, and an experienced petitioners’ bar knows how to tap medical experts to determine the likely cause of a post-vaccine injury.

Bipartisan legislation is pending that would expedite the addition of new vaccines, including COVID-19, to the court.

“I believe this would be the best antidote to vaccine hesitancy,” Maglio told me. “It would instill confidence that if something bad happened, you’re going to be taken care of.”

 

(By Jenna Greene)