Issue: January 2013
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Vaccines: An Ounce of Prevention May Lead to a Pound of Injury

Introduction

Vaccine Injury Liability

Deadly diseases the modern world considered close to eradication have appeared with new force in recent years. Religious groups opposed to the polio vaccine have prevented the complete eradication of polio. Samples of smallpox preserved after the proclaimed eradication of the disease now pose a terrorist threat.

 

Even though vaccines are designed to prevent serious diseases and minimize their potentially catastrophic medical consequences, as with all forms of medical intervention, vaccines can cause serious adverse effects.

 

Vaccine recipients who suffer serious vaccine-related injuries may turn to the legal system for compensation from the physician or other health provider who administered the vaccine, or from the manufacturer that produced the vaccine product.

 

It is critical for attorneys to understand the procedures of the National Vaccine Injury Compensation Program, and for physicians, insurers, employers, and manufacturers to be aware of their liability exposure and what strategies to employ in vaccine injury litigation.


The Perspectives: Improve Your Strategy

Attorneys:

What proof is needed for a claim of vaccine-related injury? And, what is a potential strategy for the attorney to employ?

Physicians:

How can liability for medical malpractice be avoided for an injury related to vaccination of a patient? And, what is a potential strategy for the physician to employ?

Insurers:

Can a payout under a medical malpractice liability policy be avoided by proof that the health provider was not negligent or there was no coverage for vaccine-related injuries? And, what is a potential strategy for the insurer to employ? 

Employers:

Can an employer be subject to liability for an employee’s vaccine-related injury? And, what is a potential strategy for the employer to use?

Bonus:

How can a manufacturer avoid liability for a vaccine-related injury? And, what is a potential strategy for the manufacturer to employ? 


Practice the Technique: Checklists

Attorneys:

Counsel must develop a list of facts and circumstances, specific to the client’s fact situation, which demonstrates proof of a vaccine-related injury. The checklist is an example of this technique and shows a vaccine-related injury compensable under the National Vaccine Injury Compensation Program.

Physicians:

The other parties to the litigation will scrutinize the treating physician, medical experts, and treatment provided. Physicians must consider this litigation checklist when presenting a defense to a liability claim for a vaccine-related injury, which may include the failure to vaccinate.

Insurers:

When investigating a claim of vaccine-related injury, the insurer should carefully evaluate the actions of the health provider. The insurer should look at the “red flags” in this checklist and consider how they impact the insurance coverage and the liability for payouts.

Employers:

Employers and their risk managers are concerned with preventing absenteeism and the ability of their employees to work effectively. Not all injuries are work related, however. This checklist should be considered when determining if the employee’s vaccine-related injury is “work related” and occurred “in the course of the employment".

Bonus:

The bonus manufacturer's checklist should be considered when examining a vaccine injury claim to determine if the injury is a “vaccine-related injury” covered by the National Vaccine Injury Compensation Program and is compensable by the Vaccine Injury Compensation Trust Fund.

Expert Analysis

Is There Anything Left for Vaccine-Design Injury Victims Outside of the NCVIA After Bruesewitz v. Wyeth?

Joanna Apolinsky J.D. and Jeffrey Van Detta J.D.

Can Choosing Not To Vaccinate Lead to Liability for Harming Others?

Arthur Caplan PhD

Litigation

Alternative Dispute Resolution

Arbitration or mediation may be required by contract or statute, mandated by the court or, in some circumstances, may be the appropriate method for a negotiated resolution.


Reasons to Reach Settlement

The following are reasons why the attorney, physician, insurer, employer or manufacturer would want to reach settlement, and not take the action to trial. 


Reasons to Go to Trial

The following are reasons why the attorney, physician, insurer, employer or manufacturer would want to take the action to trial.


Jury Awards and Settlements

How much have juries awarded and what settlements have been reached recently in vaccine injury cases?



Medical Examples

Vaccines, Contraindications, and Adverse Effects

This section provides detailed medical information on vaccines, how they work, specific vaccines, contraindications, administration of the vaccination, the serious adverse effects, and discusses the prognosis and ability to work.



Law and Medicine Resources

References

Provided below is a listing of law and medical references for further information on vaccine injury claims and litigation.


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Vaccines: An Ounce of Prevention May Lead to a Pound of Injury

Table of Contents
Introduction

Expert Analysis
   Joanna Apolinsky J.D. and Jeffrey Van Detta J.D.
   Arthur Caplan PhD

The Perspectives: Improve Your Strategy
   Attorneys
   Physicians and Health Providers
   Insurers
   Employers and Risk Managers
   Bonus: Manufacturers

Practice the Technique: Checklists
   Attorney Checklist
   Physician Checklist
   Insurer Checklist
   Employer Checklist
   Bonus: Manufacturer Checklist

Alternative Dispute Resolution

Reasons to Reach Settlement

Reasons to Go to Trial

Jury Awards and Settlements

Vaccines, Contraindications, and Adverse Effects

References