Another legal tactic from the anti-vaxers

Here’s an interesting one for ya. The Atlanta Journal-Constitution is reporting on a vaccine injury case filed by an Atlanta couple. The story is familiar and sad—a child starts off as a normal baby, and eventually develops a devastating neurologic illness. Based on the fact that symptoms of neurodevelopmental disorders happen to show up around the same time as vaccines are given, the family blames the vaccines.

Here’s the saga:

The Ferrari’s decided to sue. They brought suit against:

[…]nine vaccine manufacturers, eight manufacturers of thimerosal and one manufacturer of a treatment used for mothers when their blood types are incompatible with their fetuses. The Ferraris also sued Georgia Power, claiming that mercury emissions from its power plants also injured their son.

In 2005, a state court judge rightly dismissed the suit against the vaccine manufacturers, given that the Vaccine Injury Compensation Program specifically protects manufacturers. The Appellate Court, based on a precedent regarding a technical issue, disagreed, and now the case is in the Georgia Supreme Court.

The primary issue, is, I believe, whether the National Childhood Vaccine Injury Compensation Act of 1986 preempts state laws. This act was passed specifically because lawsuits, frivolous and otherwise, were causing the cost of vaccines to soar, and creating a potential public health crisis. The suit allows for compensation of injured parties outside the court system (and is much more lenient than the usual courts, as the Hanah Poling case showed). It would seem that the Ferrari’s suit is just the type of thing the law was designed to stop.

According to the AJC:

Bridgers, the Ferraris’ lawyer, told the justices that courts should review vaccine challenges on a case-by-case basis, not bar them completely. Otherwise, complaints must be brought in Washington before the U.S. Court of Claims where there are restrictions on the amount of awards, he said.

“Did Congress really intend to create an opt-out provision that allows the child to be thrown out of court?” Bridgers asked the justices. “I think not.”

Well, apparently Congress intended exactly that, but I guess we’ll have to wait to see what the courts say.


Comments

15 responses to “Another legal tactic from the anti-vaxers”

  1. We’re moving into very frightening territory here. The appellate court’s decision, should it stand, will have a devastating effect on child and public health. The VICP, although imperfect, is all that stands between the antivaxers and a deluge of frivolous lawsuits. The VICP has already moved away from science by lowering its standard for compensation by merely requiring a “biologically plausible” link between vaccine and injury. Far too many cases will receive inappropriate compensation given the relaxation of standards. As we’ve seen with the Poling case this is immediately touted as vindication by the antivaxers. Dr. Paul Offit from the Children’s Hospital of Philadelphia covered much of this in last weeks issue of the NEJM. The full text of his article is available here for free:

    http://content.nejm.org/cgi/content/full/358/20/2089

    Dr. Offit calls for the VICP to return to science and a retightening of the standards for compensation. Of course, all of this will be moot if the courts side with the antivaxers and allow direct suits against manufacturers.

  2. oystercatcher

    Vaccine manufacturers should not have immunity against lawsuits. Otherwise we will have the comparable situation with HMO’s and Health Insurance providers denying claims or canceling plans with complete disregard for the consequences to the public. A vaccine manufacturer can make a mistake i.e. contaminated product causing injury and should be liable for damages. Considering another possibility, a vaccine could cause a immune response, perhaps even anaphylatic shock, so it would seem prudent to provide a kit to test for sensitivity, prior to the application of the vaccine.

  3. Vaccine manufacturers should not have immunity against lawsuits.

    They don’t have immunity. The VICP was conceived and executed to provide compensation when known/established adverse events occur with vaccine administration. The table of covered events is available on their website. Should one of these events occur and result in injury the patient is eligible for compensation through VICP rather than traditional courts. The fund is supported by a tax on every covered vaccine.

    If a manufacturer, for instance, botched their vaccine and it provided no immunity or if they mislabeled it and a child received something else, they could be sued. Those are just two examples–there are many.

  4. I do not consider myself anti-vax. My child receives all the vaccinations he should have. Where I differ is the roll of public health. I believe it is public healths roll to educate the public in a useful way as to the benefits of getting a vaccine, then it is up to the people/parents to decide whether to get them. What I am against and probably most anti-vaxers also, is to have a law requiring them. Needing a law is a failure of public health in educating people and needs to be addressed. Passing a law is seen as bullying and will be resisted. Will this possibly cause some needless death? Perhaps, but it will also get everyone in line. Currently most states have a religious exemption anyways.

  5. PalMD

    Where I differ is the roll of public health. I believe it is public healths roll to educate the public in a useful way as to the benefits of getting a vaccine, then it is up to the people/parents to decide whether to get them

    The role of effective public health is to be intrusive. We spend public monies on clean water, sewerage. This requires taxes. Vaccines should be mandated (at least the most important and best validated ones). Others’ failure to vaccinate affects those around them.

  6. Others’ failure to vaccinate affects those around them.

    Only those that have not been vaccinated. Do we then had out Darwin Awards? Kidding aside, I believe it is the roll of public health to educate not dictate.

  7. PalMD

    Immunity wanes over time. Until a few months ago, I was probably re-susceptible to pertussis (I got a booster recently).

    With pertussis, it can hang out in the no-longer immune population as a “bad cold” and then spread to others.

  8. Only those that have not been vaccinated. Do we then had out Darwin Awards?

    Wrong, wrong, wrong, wrong, wrong!

    For one thing, no vaccine is 100% effective. For another thing, as PalMD pointed out, for some vaccines immunity can wane over time. For yet another thing, some people have medical reasons why they can’t receive certain vaccines, For a final thing, herd immunity depends upon (for most vaccines and diseases) at least 85-90% of the population being vaccinated. Without a high rate of vaccination uptake, reservoirs of disease-causing virus or bacteria can persist in the population and facilitate outbreaks.

    So, no, you are most definitely incorrect when you claim that others’ failure to vaccinate only affects those who have not been vaccinated.

  9. They don’t have immunity. The VICP was conceived and executed to provide compensation when known/established adverse events occur with vaccine administration. The table of covered events is available on their website. Should one of these events occur and result in injury the patient is eligible for compensation through VICP rather than traditional courts. The fund is supported by a tax on every covered vaccine.

    Indeed. And the standards of evidence that will trigger compensation under the VICP are much lower than the standards of evidence in civil court. Indeed, the VICP bends over backwards to give parents the benefit of the doubt, as the Hannah Poling case demonstrates. Indeed, it would appear that the VICP even provides funds that the plaintiffs can use to do their own dubious “research” to produce studies to use as ammunition to support their case.

    In civil court, there is the Daubert standard that must be met by expert witnesses. Virtually all the witnesses for the plaintiffs who testified in the Autism Omnibus thus far would have failed to meet the Daubert standard, meaning that their testimony would have been disallowed in regular civil court.

  10. Orac wrote:

    So, no, you are most definitely incorrect when you claim that others’ failure to vaccinate only affects those who have not been vaccinated.

    Are you not making my point here? The only comment I see that does not is:

    For yet another thing, some people have medical reasons why they can’t receive certain vaccines

    If people cannot get vaccines for medical reasons, then certainly they should not be given a Darwin Award. For your herd immunity comment, other then PalMD and yours, that some vaccines ware off, I will say my points stand. You want to pass laws because you have a failure to adequately communicate with the public that vaccines are necessary and give reasons why. If you do not do this you, public health, is seen as a bully (for passing laws) requiring whatever. You, public health, should not be surprised if you are resisted. If you, public health, does their job (educate, which by the way both PalMD and Orac do well, but you need a wider audience) then there is no need to dictate. We will not need Darwin Awards. As for the comment that does not fit, vaccines ware off, again, if people do not know this it is again a failure of public health, because public health did not get the message out in an effective manner.

  11. vhurtig

    Dan,

    I don’t see why the government wouldn’t have a compelling public interest in requiring vaccinations. To say that laws requiring vaccination indicate a failure of public health to educate the public is like saying traffic laws compelling us to follow the rules of the road show a failure in public driver education. We need both education and law to ensure public safety.

  12. WRMartin

    Sorry Dan, you haven’t convinced me (How about anyone else?).
    Laws are passed all the time for the public good. Are you saying the public health should rely on the public actually listening to the information, getting educated, and then making the correct decisions? Good luck with that. Already today (and it’s only noon) I’ve witnessed a driver not yield properly at a 4-way stop, a shopper cut in front of someone at the grocery store checkout, and another shopper with more than the listed 12 items or less in the express lane. And none of those (with the possible exception of the driver who blew the stop sign) was a public health issue.
    You must not get out very much.

  13. Tegumai Bopsulai, FCD

    The Ferrari’s decided to sue. They brought suit against:
    .
    […]nine vaccine manufacturers, eight manufacturers of thimerosal and one manufacturer of a treatment used for mothers when their blood types are incompatible with their fetuses. The Ferraris also sued Georgia Power, claiming that mercury emissions from its power plants also injured their son.

    Amazing they didn’t include God in the list.

  14. jen_m

    Hey, why don’t we vaccinate adults against pertussis, anyway? We vaccinate every 10 years against tetanus, and pertussis and tetanus have been successfully packaged in the same shot for kids forever, so – why not booster adults on the same schedule? Seems like if adults are susceptible, then adult vax benefits herd immunity.

  15. PalMD

    We do now, with the tDaP.