THE LAW AND VACCINE-INJURY COMPENSATION

 

 

 

 

Dr. Sherri Tenpenny, DO
June 19, 2007
NewsWithViews.com

Last week, the first of 4,800 cases came before the U.S. Federal Claims court, referred to as the �Vaccine Court.� Michelle Cedillo is the �test case� to discern whether there is a likely connection between the MMR vaccine, autism and thimerosal.

Here is a synopsis of the case: Michelle developed normally during the first year of her life. Seven days after her MMR vaccine (measles, mumps and rubella) at 15 months, she abruptly developed a high fever that abated and then recurred. Shortly thereafter, she lost her ability to speak, became disinterested in her surroundings, developed intense sensitivity to sounds and was eventually diagnosed with autism. Additionally, two weeks after the shot, she developed severe diarrhea which persists to the present day. Prior to receiving the MMR, she received vaccines containing more than 100 ugm of mercury from thimerosal. Facts supporting the connection between her autism and the MMR include a biopsy of her intestinal lining documenting vaccine-strain measles virus when she had no other measles exposure

Reporters from the major networks, newspapers and publications are making dismissive remarks they�ve have been told by pharmaceutical companies and the pro-vaccine medical community. The result is spin on an issue that is a combination of complex neuroscience, mercury toxicity, and biological causation. Without balanced reporting, parents are made to look like money-hungry gold diggers.

Drug Company Pundits Go To Work

With so much at stake, drug companies and public health officials are calling on their heavy-hitters to protect the vaccination program. Dr. Paul Offit, from the Children�s Hospital of Pennsylvania and said to be the �USA�s biggest vaccine pusher�[1] is making speeches and television appearances. He has been quoted as saying, "From my standpoint, this question has been asked and answered. You know, it's a scientific question. It's best answered in a scientific venue. It's been done. I mean, the court is not a place to determine scientific truths. The court is a place to settle disputes."[2] What Offit is overlooking is that an unbiased Court is the best place to settle this dispute.

Others who unabashedly support the mandatory vaccination programs have also gone into action. Arthur Allen, author of Vaccine: The Controversial Story of Medicine's Greatest Lifesaver, has written blather on Slate.com in an attempt to discredit Dr. Mark Geier, an expert witness for parents. He concluded by saying, �If the court finds that vaccines are guilty of triggering autism, it could order lifelong payments for the care of thousands of autistic children. This would bankrupt the vaccine-compensation program, created two decades ago to shield the drug industry from lawsuits while providing the parents of vaccine-damaged children with a no-fault means of payment.�[3] His concern seems to be for the profit margins of drug companies and a government program designed to protect them rather than providing needed healthcare and social services to vaccine-injured children.

But the article in the Washington Times by Gilbert Ross, M.D., the executive and medical director of the American Council on Science and Health, topped them all. His dismissive article starts by saying, �Scientists years ago dismissed the alleged causal link between childhood vaccinations and autism. But a large and vocal group of advocates are nonetheless convinced there is a cause-and-effect relationship. For them and their lawyers, science is irrelevant.� This short article must be read to get the complete impact.[4] Be prepared to scream.

A side note about Ross' background as a hired gun for industry is revealing. He has previously written that arsenic in pressure-treated wood poses 'no risk to human health,' and that the PCBs in fish 'are not a cause of any health risk, including cancer.' After participating in a scheme that ultimately defrauded New York's Medicaid program of approximately $8 million, he had his medical license revoked and spent a year at a federal prison; he only recently regained his medical license. A judge found him to be "a highly untrustworthy individual.�[5]

All three pro-vaccine pundits have missed the entire purpose of going to Court. Created on October 1, 1988 by the passage of the National Childhood Vaccine Injury Act (Public Law 99-660), the Vaccine Injury Compensation Program (VICP) was designed to be a no-fault alternative to the traditional tort system. It is designed to resolve vaccine injury claims and provide compensation to vaccine-injured persons.[6]

The VICP promised to be fair and less adversarial than civil court. Instead, justice department lawyers fought relentlessly over the years to defeat petitioners. The Special Masters (judges) discounted all opinions regarding the link between vaccine and injury unless it could be substantiated with peer-reviewed scientific literature. With the majority of the medical literature negating the associations between vaccines and injuries, petitioners were left with little to support their claims. This was not the intent of the law.

In July, 2005, a landmark decision by the Federal Circuit of Appeals called �Althen v. Sec'y of HHS� lightened the burden of proof for petitioners in the Vaccine Program. In this decision, the court made it clear a person only needs to show that a vaccine was �likely to cause the injury.� While expert testimony is still necessary to prove a claim, the expert �may base the opinion on circumstantial evidence, rather than direct, objective conclusive scientific evidence.�[7]

An additional ruling (March, 2006) by the Federal Circuit Court of Appeals referred to as �Capizzano v. Sec�y of HSS� further leveled the playing field for claimants. The court held that petitioners do not need peer-reviewed scientific literature to prevail. It is enough to provide a �medical theory linking an injury to the vaccine, a logical sequence of cause and effect between the vaccine and the injury.� Peer-reviewed literature, pathological markers, and general medical acceptance to prove the connection is not necessary. Significantly, the court found that the opinions of treating doctors should be given �great evidentiary weight when considering the logical sequence of cause and effect.�[8] Thanks to these two rulings, the court is required to provide compensation unless the government can show the injury was caused by something other than the vaccine. It appears, so far, that Michelle Cedillo has the law in her favor.

The Money�s In The Bank

Will favorable ruling �break the bank�of the VICP Trust fund? Unlikely. The Department of Heath and Human Services (HHS) estimates the VICP Trust fund will pay $62,802,000 in awards for related vaccine-injuries and deaths in FY 2007. The balance of funds remaining in the Trust at year end is anticipated after the payout is anticipated to be more than $2.5 billion.[9]

So, let�s do the math: If all 4,800 petitioners prevailed by the standards set by Althen and Capizzano, there are enough funds to pay each family $500,000 and have money left over. Even though this may sound like a huge sum, it will not begin to cover the lifetime healthcare needs for these children. But it will help. In the mean time, the Trust will immediately begin to replenish itself. Funding for the program is obtained through a $0.75 tax on each vaccine. HHS reported collecting $90 million through the tax in 2006 and the Trust accrues substantial interest income. Even if the current load of autism cases �breaks the bank� in 2007, the pot will promptly begin to refill at the beginning of 2008. If necessary, additional appropriations could be allocated by Congress.

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The law favors the petitioners, the VICP has the funds to pay for the damages and the money should be released from the coffers. The VICP Trust fund was created for just this scenario. The lives of these children have been sacrificed ostensibly for the �good of the whole.� Compensation from a government that requires mandatory vaccination is the least our society can do.

 

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� 2007 Sherri Tenpenny - All Rights Reserved