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Why the Statute of Limitations in The Vaccine Court is SOL

POI

By Wayne Rohde

One of the most discussed, debated, and obscene forms of injustice in the National Vaccine Injury Compensation Program (NVICP) -- the "Vaccine Court" --is the very restrictive statute of limitations. Plainly put, you have 3 years from the onset of symptoms for injuries after the administration of a vaccine.  In the case of death, only 2 years. Other state and federal court systems have more generous statutes ranging from 6 to 10 years to the date the minor child reaches the age of 18.

The latest effect of this unfair requirement is to deny justice to girls who have been rendered infertile by the HPV vaccine, a growing problem that needs to be addressed.

The Statute

42 U.S.C. § 300aa-16(a)(2).

Section 300aa-16(a)(2) of the Vaccine Act provides that, regarding a vaccine set forth in the Vaccine Injury Table which is administered after [October 1, 1998], if a vaccine-related injury occurred as a result of the administration of such vaccine, no petition may be filed for compensation under the Program for such injury after the expiration of 36 months after the date of the occurrence of the first symptom or manifestation of onset . . . of such injury.

Special Master Lisa Hamilton-Fieldman overseeing the HPV-POI Omnibus

This statute of limitations is not triggered by the administration of the vaccine, but “begins to run on the date of occurrence of the first symptom or manifestation of onset of the vaccine-related injury for which compensation is sought.” Cloer, 654 F.3d at 1335. “[E]ither a ‘symptom’ or a ‘manifestation of onset’ can trigger the running of the statute [of limitations], whichever is first.” Markovich v. Sec’y of HHS, 477 F.3d 1353, 1357 (Fed. Cir. 2007). [i]

“[I]t is the first symptom or manifestation of an alleged vaccine injury, not first date when diagnosis would be possible, that triggers the statute of limitations.” Carson ex rel. Carson v. Sec’y of HHS, 727 F.3d 1365, 1369 (Fed. Cir. 2013), reh’g & reh’g en banc denied, 2013 WL 4528833 at *1.  “A symptom may be indicative of a variety of conditions or ailments, and it may be difficult for lay persons to appreciate the medical significance of a symptom with regard to a particular injury.” Markovich, 477 F.3d at 1357.  While the symptom of an injury must be recognized as such “by the medical profession at large,” Cloer, 654 F.3d at 1335, even subtle symptoms that a petitioner would recognize “‘only with the benefit of hindsight, after a doctor makes a definitive diagnosis of injury,’” trigger the running of the statute of limitations, whether or not the petitioner or even multiple medical providers understood their significance at the time. Carson, 727 F.3d at 1369-70 (quoting Markovich, 477 F.3d at 1358).[ii]  

Markovich was the defining case for onset of symptoms.  The little girl started to blink at a doctor’s office.  The pediatrician interpreted that as a symptom of seizures and wrote a note in the file.  A few years later, the parents filed a petition seeking compensation for their daughter’s injuries.  The petition was later dismissed on the grounds that it was time barred, or exceeded the 3-year statute of limitation. 

By a couple of weeks. 

Or a mother, frantically trying to understand that her child was falling a little bit behind.  The doctor wrote in the margins of the medical chart, speech delay.  But did not tell the parents.  Later, the parents would file a petition seeking compensation for vaccine injuries causing development delay and autism.  Petition would not be adjudicated on the merits of the known injury.  DOJ attorneys asked the special master to dismiss the petition because it was time barred.  Just a doctor recording an observation without telling the parents.

And no fault of the parents. 

Now we come to recent dismissal of 7 petitions on the basis of being time barred or exceeded the statute of limitations.  The Court was bound by legal statute to dismiss the petitions.  No way around this issue that is confronting the special master. 

In late April, I noticed a few interim fee applications submitted to the Special Master for approval and payment.  These fee applications were to reimburse medical experts and other costs accumulated with a few petitions.  I noticed a reference note at the bottom of one of the pages describing a new omnibus being formed. 

After what happened with the Omnibus Autism Proceedings (OAP), I have advocated to several attorneys to never, ever, step into that type of bear trap again. 

But it did happen.  There has been a growing number of petitions filed with stated injury of what is called Premature Ovarian Insufficiency (POI).  Basically, girls, young girls, some the age of 15 are developing POI and becoming sterile.  Most of these symptoms of POI are not “normal” for a woman under the age of 40.

The number of petitions in this omnibus proceeding is 16 as of June 1, 2016.  Most of them were filed in 2014 or 2015.  however, in the interim fee decision that was approved for one attorney, there was a brief discussion about several of the petitions having statute of limitations issues.

So here is how several of them went.  Girl would receive the HPV vaccine, usually the 2nd or the 3rd in the series.  At some time later, maybe 6 months or even a year later, she sees her doctor to discuss the lack of any menstrual cycle.  There was one petitioner that took nearly 2 years before seeing her doctor because she did not have medical health insurance.

Reading the medical background contained in the case decision, it appears that the doctors of nearly all these petitions were refusing to acknowledge the HPV vaccine causing POI.  Could not explain how the young woman developed POI.  But it sure was not the vaccine according to the doctors.

By the time the injured person files a petition, it is too late.  I noticed several with a time from the onset of symptoms of the injury to the filing date.  3 years and 2 weeks, 3 years and 1 month.  And so on.

Former Congressman Dan Burton of Indiana, a longtime warrior fighting to uncover the corruption of the FDA and the CDC regarding vaccine injury, namely thimerosal in childhood vaccines, introduced on a few occasions a decade ago, legislation to amend the statute of limitations to increase to 6 years + and also providing a look-back provision to allow those who have not filed because of the SOL, to have a chance to petition the NVICP for compensation.

Those efforts ran up against a very strong opposition and deaf ears of Congress and the Secretary of HHS.  Even the Secretary’s own Advisory Council of Childhood Vaccines recommended several times to expand the statute.  She will have none of it.

Any significant change or reforms requested to the Program would require Congress’s effort to pass legislation.  And that would expose the Program to amendments that could possibly reform other measures.  I mentioned over a dozen needed reforms in my book, The Vaccine Court.  So maybe that could be a reason why no reforms of any significance have been in acted.

This nation can no longer continue damaging individuals thru the use of vaccination and leave them no credible legal remedy to seek compensation.  It is time to significantly reform the existing program or repeal the Act. 

But who do the girls see about their medical condition that has prevented them from starting a family?  Apparently not the same ones that injured them.

The Vaccine Court bookWayne Rohde, author of The Vaccine Court – Dark Truth of America’s Vaccine Injury Compensation Program

Published by Skyhorse Publishing – New York City

[i] Hamilton-Fieldman.Jessica.Laughlin  13-289v, United States Federal Court of Claims.

[ii] Id

Comments

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Andrea c Valle

Letter from the Health Department that states that Vaccine could cause Autisum in some children.

Hans Litten

http://healthimpactnews.com/2016/japanese-doctor-discovers-link-between-hpv-vaccine-and-chronic-fatigue-syndrome/

After receiving the HPV vaccination, many women have reported that they have developed chronic fatigue syndrome (CFS). Many researchers believe that that the condition is linked to autoimmune disease, however, until recently, the reason why some women have developed the condition post-HPV vaccination has remained a mystery.

Chronic epipharyngitis is not widely understood condition. However, due to its possible link with immune function and central nervous system it has been suggested that there has been a relationship between epipharyngitis and autonomic immune disorders as well as epiphryngitis and autoimmune disease.

According to Japan Society of Stomato-pharyngology Vol. 23 (2010) No. 1 P 37-42:
Chronic epipharyngitis is difficult to diagnose because it is often asymptomatic and presents no abnormal gross appearance. The epipharynx is rich in lymphocytes with phenotypic analysis showing highly activated T and B lymphocytes. Ciliated epithelial epipharynx cells express class II antigen and act as antigen-presenting cells. Chronic epipharyngitis thus may act as a focal infection, similar to chronic tonsillitis, in developing various types of autoimmune disease such as glomerulonephritis and chronic skin conditions.

Mary S. Holland

Another excellent piece. Thank you, Wayne.
Mary Holland

Reader

Many thanks, Hans and Sophie. Have a look at this link:

http://healthydebate.ca/opinions/more-transparency

concerned


VICP is nothing more than a big joke. What happened to the "knew or should have known" rule for SOL in medical issues?

Perhaps the wrong argument is being used. If Merck does not even acknowledge POI as a side effect of Gardasil then it makes absolutely no sense to use the beginning of ANY side effects until, at a minimum, the diagnosis of POI is made. In a negligence case one uses the medical SOC and of course, symptoms are just that and nothing more until put together and a diagnosis is made. The doctor is only negligent if he/she should have known based on clinical presentation what the diagnosis was and treat accordingly.

One would think that if a SOL in a VI could be dismissed because of a lapse of time, then one could sue a physician for negligence for failure to diagnose POI in a timely manner for failure to notice by the first symptom that the patient had POI!

How about we start suing physicians for gross negligence for failure to timely diagnose autism which could have led to earlier intervention services and much better prognosis (easy to figure out the money in terms of damages and can also add in emotional pain and suffering, etc). If physician's start becoming more aware of their liability, they may start paying attention to just how many kids are coming through their doors with all kinds of developmental disorders as they start writing down (or not which is okay too if they are not going to bother to tell the parent)...

Sophie Scholl

@reader (is this enough for you ? )

http://www.greenmedinfo.com/blog/pharma-s-dirty-little-secret-do-bleeding-calves-narcolepsy-and-infertility-have-sa

Little discovered that even product information was misleading on this point and failed to mention that the “placebo” for the HPV contained the toxic metal aluminium and polysorbate 80 – an ingredient which has exhibited delayed ovarian toxicity to rat ovaries at all injected doses tested over a tenfold range.

Polysorbate 80 has been compared to diethylstilbestrol (DES), a cancer drug given to women until 1971 when it was shown to induce cancer. Later researchers discovered children who were exposed to DES in utero also had high risk of cervical cancer and infertility.

http://www.ncbi.nlm.nih.gov/pubmed/8473002

Delayed effects of neonatal exposure to Tween 80 on female reproductive organs in rats.
Gajdová M1, Jakubovsky J, Války J.
Author information
Abstract
Neonatal female rats were injected ip (0.1 ml/rat) with Tween 80 in 1, 5 or 10% aqueous solution on days 4-7 after birth. Treatment with Tween 80 accelerated maturation, prolonged the oestrus cycle, and induced persistent vaginal oestrus. The relative weight of the uterus and ovaries was decreased relative to the untreated controls. Squamous cell metaplasia of the epithelial lining of the uterus and cytological changes in the uterus were indicative of chronic oestrogenic stimulation. Ovaries were without corpora lutea, and had degenerative follicles.

Sophie Scholl

http://www.tlbtowncrier.com/2015/09/tlb-radio-exclusive-the-who-caught-using-a-second-vaccine-to-sterilize-unsuspecting-populations/

The WHO Caught Using A Second Vaccine To Sterilize Unsuspecting Populations

“Obviously, nobody knows what would happen if it is given to human children below the age of 5 years This is because until now, nobody has been crazy enough to experiment on humans!!!! Suffice it to say that Estradiol should not be in a vaccine unless the manufacture can explain its presence and this we have not been able to establish.”

Finding that their plans to render the young women of Kenya infertile had failed, according to reports, the World Health Organization and the United Nations decided to switch tactics and attempt to render the young men infertile instead.

In August 2015, NPR News reported that the Kenyan Conference of Catholic Bishops (KCCB) had decided to boycott the current polio vaccine program because the vaccine was found to contain estradiol, a derivative of the estrogen hormone believed to cause infertility.

Louis Conte

The program needs to be shut down and people deserve the right to seek relief in civil courts where standard rules of evidence apply.

Thank you Wayne for your work in revealing yet ANOTHER injustice.

Joanna

We all know what SOL really means...

Bob Moffit

"This nation can no longer continue damaging individuals thru the use of vaccination and leave them no credible legal remedy to seek compensation. It is time to significantly reform the existing program or repeal the Act. "

Couldn't agree more with Wayne .. but .. it would require an "ACT OF CONGRESS" .. to overturn THEIR disastrous legislation establishing the "Vaccine Court" in the first place .. and .. I think we ALL know that is .. most likely .. NEVER GOING TO HAPPEN. NEVER. WHY?

Every day .. GOVERNMENT authorities .. LOCAL, STATE AND FEDERAL .. become less and less accountable to the people .. and .. unfortunately ... we the people are powerless to do anything about it.

CDC accused of fraud and corruption by credible whistleblower. NOTHING HAPPENS.
Merck sued in Federal Court for a mumps vaccine THEY know is defective. NOTHING HAPPENS.

NOTHING HAPPENS BECAUSE THE MEDIA .. TO PUT IT BLUNTLY .. JUST DOES NOT CARE. PERIOD.

As Thomas Paine once wrote: "These are times that try men's soul's ..

Hans Litten

@Reader (so isn't true Japan has withdrawn both the MMR & Gardakil vaccine now - oops)

some reading for you :

http://sanevax.org/wp-content/uploads/2016/01/Allegations-of-Scientific-Misconduct-by-GACVS.pdf

Today, Dr. Sin Hang Lee, MD sent an open letter of complaint to the Director-General of the World Health Organization (WHO), Dr. Margaret Chan, relating apparent misconduct on the part of Dr. Robert Pless, the chairperson of the Global Advisory Committee on Vaccine Safety (GAVCS)*, Dr. Koji Nabae of the Ministry of Health of Japan, Dr. Melinda Wharton of the Centers for Disease Control (CDC), and Dr. Helen Petousis-Harris of Auckland University, New Zealand.

http://jvi.asm.org/content/87/22/12187.full

In conclusion, the data presented here reveal additional complexities of the immunological activity of aluminum hydroxide that can impact its efficacy as an adjuvant. Although we assume that the overall conclusions of our work can be generalized, the specific effects are likely to be dependent on the unique structural property of each immunogen and are largely unpredictable.

Hans Litten

@ Reader , I get where you are coming from though and why you need to come here to counter that so called rumour , because if the "herd" gets a snifter of the truth about Gardakil sterilising their daughters (and god knows what it will do to their sons) then its game over for Merck-CDC .

Clearly why this story needs to be killed - yes ? Gardakilled .

Hans Litten

https://www.lifesitenews.com/news/16-year-old-girl-became-infertile-from-gardasil-vaccine-british-medical-jou

The British Medical Journal (BMJ) Case Reports journal has reported that a healthy 16-year-old Australian girl lost all ovarian function and went into menopause after being injected with the human papilloma virus (HPV) vaccine Gardasil.

Dr. Deirdre Little, the Australian physician who treated the girl, provides solid evidence that Gardasil caused the destruction of the girl's fertility.

She also pointed out that Merck Pharmaceutical, the manufacturer of Gardasil, has no supporting information on the effects of the vaccine on ovaries, suggesting that Merck had either done no safety testing on Gardasil in relation to its effects on women's reproductive systems, or had suppressed the information.

Hans Litten

@reader

I think I saw it explained somewhere on a website by Allison Jones if I remember correctly .

She appeared on a panel with Andrew Wakefield , Toni Bark , Larry Cook , Delgado
and I was very impressed with her .
She seemed to really want to explain things down to the mechanism level for us which I liked.
I'll see if I can find it again to post up for you .

Reader

Can't see anywhere else to put this. The new format makes it very difficult to find the general comments. It isn't at top as it used to be. It seems as though comments are down, but I'm not sure about that. Anyhow, here's an interesting article in pharmaceutical money bias in medical education:

http://healthydebate.ca/opinions/more-transparency

Reader

Honest question: what is the mechanism (what ingredient) would cause POI specifically in Gardasil? Is it an accumulation of aluminum adjuvant for some? It seems easy and simplistic for "skeptics" to laugh and write off as conspiracy, that a vaccine for a sexually transmitted disease could cause sterility, that's why I'm asking.

Benedetta

The American public has been had.
They made up this court with it in mind for only the kids that have been immediately, horribly devastated; now just some what minor learning problems, not talking very much or at all, no social skills, some minor little health or mental health problem - don't ya know.

Sorry, low life out fits.

Prison -- I want prison -- I want Prison not just for all those that are holding the reins right now - I want to go get 'em back in the 1970s when they had not done a study for over 40 years because get this -- the CDC just did not have the funds --- to do the study. The CDC did not have the funds.

The study; To see if more kids were have adverse reactions to the vaccine than to the actually whooping cough disease.

Hans Litten

"This nation can no longer continue damaging individuals thru the use of vaccination and leave them no credible legal remedy to seek compensation. It is time to significantly reform the existing program or repeal the Act. "

Repeal the ACT :
Its probably our best hope of bringing this madness to an end - but we seem miles away from that .

My View :
Civil disobedience and visible street protest is the only solution (Monsatan style).

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