Vaccine Law: Friend or Adversary?
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The benefit of this type of process in vaccine cases is that at the minimum it becomes less adversarial. One of the reasons that vaccine claims are so adversarial is because of precedent: when a judge concludes one injury to be causationally linked to a vaccine, anyone and everyone with that injury will file a lawsuit. Therefore, it is highly beneficial for vaccine makers to keep new injuries from that judicial stamp of proven causation. Instead of fighting precedent, if the federal government aids in keeping disputes out of court, the risk of bad precedent decreases and settlements remain confidential. While this more advantageous process may increase the number of claims filed, cases that are dismissed by the federal agency can look only to litigation for relief. Even at that point, if design defect claims are limited by the above proposals, the litigation option will not be overly attractive unless the claim has merit.
Another benefit for this type of process is that it expedites the process for injured parties to be made whole. Currently, the law gives the Special Court Master 240 days to adjudicate claims. Following that, the claimant can appeal to the FCC; and finally after exhausting those options the claimant can file a civil suit. The GAO stated that despite this designation, most claims take over two years just to get past the initial stage, let alone the appeals. Under the proposed process, the federal agency must either dismiss or mark claims for investigation by 180 days. For claims that are dismissed, parents retain the right to file a civil suit within 90 days but do not have the support and aid of the federal agency. For claims that are investigated, the federal agency can work to expedite an out-of-court settlement that would likely take less time and cost less than litigation. If it can not do so, the parent or the federal agency can initiate a lawsuit within 90 days. Either way, the parents are closer in time to a binding judgment or settlement at the moment they file under the proposed process than they would have been under the current system.
A third benefit is that the proposed changes encourage vaccine makers to make safer vaccines, which is undeniably good for the American population. Because vaccine makers are currently protected from litigation, and because they have the federal government fighting claims on their behalf, the incentive to make vaccines as safe as possible is minimal. If instead of protection, vaccine makers were held accountable by the government, they would have more financial and political incentive to keep vaccines as safe as possible. This incentive is only further fueled by the proposed change in law to hold vaccine makers liable for designing unsafe vaccines.
Finally, the proposed changes are designed to facilitate the process of making an injured party whole. Any process that is in place must recognize and balance the competing policies: (1) to maintain accessibility to vaccines by keeping costs of vaccines down and keeping vaccine makers in business; and (2) to make injured parties whole. The current system is focused on the former by protecting vaccine makers from the costs of litigation and thereby keeping costs of vaccines low. However, this system creates substantial hurdles for injured parties by limiting accessibility to compensation to extremely narrow circumstances. This type of policy is actually beginning to cost vaccine makers business because of the publicity of vaccine-related injuries. By changing the system from being primarily adversarial in nature to one that assists injured parties to get compensation, injured parties are more likely to be made whole even in cases where causation is disputed. Because out of court settlements are confidential, precedent is not a risk and therefore widespread litigation does not become a high risk either. Furthermore, because the legal fees involved are minimal when cases are settled before they go to court, vaccine makers have incentive to settle and provide at least actual damages to claimants.
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