The Vaccine Injury Court

That law, the National Childhood Vaccine Injury Act of 1986, limited the legal liability of vaccinemakers and created the National Vaccine Injury Compensation Program (VICP) in the Department of Health and Human Services. The VICP is a no-fault route for people injured by vaccines to win damages from a government trust fund financed by an excise tax on vaccines. (Despite the law's title, adults, too, can win compensation for vaccine injuries.) 

Since its first case in 1988, the vaccine court has adjudicated more than 16,000 petitions and dismissed two-thirds of them. To the successful petitioners, and their lawyers, it has awarded about $3.6 billion. The system has attracted scores of attorneys, who are paid hourly legal fees of up to $430 regardless of whether a claim succeeds. The court's website lists 195 lawyers nationwide who are willing to take vaccine cases, although petitioners can hire others. Many are clearly in search of their piece of the $3.7 billion sitting in the trust fund today. A sampling of the bold proclamations on vaccine lawyers' websites include these: “WE HAVE RECOVERED MILLIONS FOR OUR CLIENTS”; “Pursue Compensation”; and “NO COST to you.”

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THE VACCINE COURT'S DATA show that bona fide vaccine injuries are rare. For every million vaccine doses eligible for compensation that were distributed in the decade beginning in 2006, the court compensated one injury victim. Depending on the gravity of the disease in question, receiving a vaccine is orders of magnitude less dangerous than staying unvaccinated. The tetanus vaccine that Durant received causes a life-threatening allergic reaction in at most 0.0006% of people who get the shot. The U.S. case fatality rate from tetanus, by contrast, is 13.2%. “One injury from vaccines is one too many, but it is also important to keep perspective,” says Sarah Atanasoff, a physician at the VICP in Rockville, Maryland. “The benefits of vaccination to the individual, the local community, and the nation as a whole far outweigh the risks.” Petitions filed with the court suggest that among those real risks, shoulder injuries have become by far the most common. 

Rarer injuries include Guillain-Barré syndrome (GBS), a neurological malady associated with some influenza vaccines; anaphylaxis, a life-threatening allergic reaction that almost any vaccine can cause and occurs 1.3 times per million vaccinations; intussusception, an intestinal blockage that occurs in between one and five of every 100,000 infants vaccinated against rotavirus; and brachial neuritis (also called Parsonage-Turner syndrome), a painful inflammation of the nerves supplying the hand and arm, which afflicts up to 10 of every million tetanus vaccinees. Vaccination also can provoke (as well as prevent) febrile seizures, which occur in up to 5% of toddlers who become feverish for any reason. Those seizures are most common after measles, mumps, and rubella (MMR) or the combined MMR and chickenpox vaccine, occurring in up to 300 of each million children vaccinated. Typically lasting 1 to 2 minutes, the seizures can be frightening to witness. But they are transient and almost always without lasting effects.

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In fact, needles can do precisely that kind of damage if a vaccine is improperly administered too high on the upper arm, and the needle pierces the deltoid muscle and continues into the shoulder joint. There, physical damage from the needle and, more important, an immune reaction to the injected vaccine can provoke an inflammation that damages tendons, ligaments, and the fluid-filled sacs called bursas that reduce friction in the joint. Late in 2010, scientists in the government's VICP published a description of such injuries and gave them a name: shoulder injury related to vaccine administration. The government physicians, led by Atanasoff, had identified 13 adults who between 2006 and 2010 petitioned the court for compensation for shoulder injuries and submitted voluminous medical records. None had previous shoulder problems, but each had developed sudden, acute pain and a limited range of motion in a shoulder after a vaccination. Four patients needed surgery, and half of those needed a second operation. Their MRI reports showed shoulder joints riddled with inflammation. Half reported that the vaccine had been given “too high” in the shoulder. Most had received the vaccine in question—flu or tetanus, and in one case human papillomavirus—in the past, suggesting that the body's immune system was already primed to attack, in an immune response that led to serious, prolonged inflammation in the joint.