What Are Your Recovery Rights If You're Injured by the Covid Vaccine?
James Paisley 10/11/2022
I really don't like this question. The pandemic is over, right? So, why even bring this up? I really hate even mentioning Covid. I've avoided this question for a long while but enough people inquired and I started to wonder myself. I reached out to some vaccine lawyers that do not wish to be named and I gathered data from some government websites. I'm not opposed to vaccines at all but even writing about this subject can create a lightning rod effect. A former client asked me this question after she had onset of some terrible health conditions shortly after her COVID vaccine. Her problems were cardiovascular in nature with an extraordinary jump in hypertension to almost stroke levels where she needed immediate medical attention. Although her condition seems chronic now, her blood pressure, pulmonary, vascular, and circulation issues have improved with treatment and medication.
Adverse events from vaccines are reported on https://vaers.hhs.gov/data/datasets.html – or better known as VAERS which is run by the Department of Health and Human Services. Whether these events are under-reported or completely unrelated, it is undisputed that vaccine injury can occur in a small incidence. Nothing I say here is disparaging vaccines – I'm just doing what I always do and offer my legal analysis on a subject. I'll also concede I'm not a vaccine injury lawyer and it's a highly specialized practice in the US Court of Federal Claims that few lawyers are familiar with. Email me if you need a referral to a vaccine injury specialist.
Generally, recovering damages from a vaccine injury is governed by 42 USC § 300aa-11(a)(2)(B). This statute applies to most vaccines. This statute provides wide sweeping civil immunity to the pharma corporations, those that administer vaccines, doctors, facilities of administration, and health providers. If you file a lawsuit against a doctor or entity for a vaccine injury, it will be dismissed with prejudice as preempted by the statute. For the vast majority of vaccines commonly used, the exclusive remedy to recover damages is through the United States Court of Federal Claims and funded through the National Vaccine Injury Compensation Program or NVICP. There is no subpoena power, no rights to discovery, no depositions of pharma executives, no rights to a jury trial, etc. This process is purely administrative.
In short, “table injuries,” i.e., injuries that the vaccine likely causes, are easier to recover from because petitioners must show that (1) the vaccine was administered to them and (2) a subsequent table injury followed within the required time frame. Conversely, petitioners suffering a non-table injury must show that (1) the vaccine was administered to them, (2) an injury followed, and (3) a rational medical theory connects the vaccine to the injury. Non-table injuries require expert testimony to establish causation, and the government is given a chance to dispute this theory with their own expert testimony or evidence. Most claims resolve via negotiated settlement between the two sides. Damages are capped at $250,000 for death and pain and suffering, but claimants can also recover for past and future medical expenses, and lost earnings.
Conversely, COVID vaccine injuries are NOT governed by the NVICP and instead are regulated through the Countermeasures Injury Compensation Program (CICP).
February 4th, 2020 the HHS issued a Notice of Declaration for countermeasures against COVID which brought it under the purview of the CICP. Therefore, those who manufacture, distribute, or administer these countermeasures (i.e. vaccines) are immune from liability absent intent to harm or willful misconduct. Per the CICP, COVID vaccine injuries have a 1-year statute of limitations, and only cover “serious physical injury or death.” The CICP also applies to medications used in the treatment of COVID – think of all the experimental meds doctors would use on critically ill patients in an attempt to save their life. The CICP covers the Covid vaccines, H1N1 flu vaccine from 2012, and the Anthrax vaccine from the early 2000's.
It is far more difficult to recover under the CICP. Consider these numbers: Per hrsa.gov/cicp, there have been 9,888 COVID-19 countermeasure claims to date, 7,084 allege injuries/deaths from COVID-19 vaccines and 2,804 allege injuries/deaths from other COVID-19 countermeasures. The CICP has paid compensation for 30 CICP claims, totaling more than $6 million. An additional 10 CICP claims were eligible for compensation after a review of the required medical records and documentation.” So out of almost 10,000 claims, the CICP has granted relief on 40 of them. I'm sure many are still being processed and reviewed. Another factor in reasoning the difficulty of recovery is because the COVID vaccines are so new, and thus have no table injuries that would likely trigger coverage. I would presume the development of table injuries would take years of studies to establish.
What makes the CICP for COVID vaccines even more difficult and burdensome to recover is there are no judges or juries in this process – There are no hearings, and no judicial review allowed at all. Claims are examined by agency administrative personnel, and appeals are sent to the claims examiner's supervisor. These admins are not lawyers and their opinion is final. The success of your claim is based solely on the discretion of these claims examiners. I don't see how there is any relief if they arbitrarily deny your claim. Furthermore, there is also no place for experts or lawyers in this process – if you win your claim, the CICP will not award attorney's fees to the injured party. So, unless you have your own ability to pay an attorney and an expert to file your claim for you, there will not be an attorney involved.
If you've lost someone or you're taking care of someone that you believe was injured by a Covid vaccine, then visit https://www.hrsa.gov/cicp/filing-benefits, and explore your rights and processes to recovery. Remember there is a 1 year filing limitation from the date of the injury, and only applies to serious injury or death.
Attorney James Paisley is an Atlanta personal injury attorney specializing in serious injury and wrongful death cases. You can email him or reach him at the office at 404.618.0960.
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