By Wayne Rohde
How does the National Vaccine Injury Compensation Program (NVICP) and the Federal Court of Claims deprive petitioners, who are seeking compensation for their injuries, the opportunity to seek and retain legal counsel? Very cleverly. But it takes some understanding of how legal representation in the program has evolved and more importantly, how fees are paid.
Federal Court of Claims & 6th Amendment
The NVICP was established in 1986 and the legal proceedings are to be conducted within the Federal Court of Claims jurisdiction, located in Washington D.C. The Federal Court of Claims is the only federal court system that allows a person to sue the federal government.
Your right for legal counsel to represent you lies within the 6th Amendment. However, the right to legal representation is a matter for criminal proceedings not civil matters.
“In all criminal prosecutions, the accused shall enjoy the right…to have the Assistance of Counsel for his defense.” [i]
The Assistance of Counsel Clause includes, as relevant here, five distinct rights: the right to counsel of choice, the right to appointed counsel, the right to conflict-free counsel, the effective assistance of counsel, and the right to represent oneself pro se.[ii]
Attorney fee compensation
Congress authorized the payment of fees and costs to compensate attorneys that represented petitioners. Under the Vaccine Act, a special master who has awarded a petitioner “compensation” on a vaccine related claim “shall also award as part of such compensation an amount to cover . . . reasonable attorneys’ fees.” [iii]
So who pays for the petitioner’s attorneys and medical experts? The Vaccine Injury Trust Fund.
In the beginning, the fees and costs were capped at $30,000.00. The caveat is that the petitioner’s pain & suffering was included with that total. Can you imagine the consternation of a petitioner who suffered greatly from an injury and the special master awards only $5,000.00 in P&S because the attorney submitted a bill for $ 25,000.00 in fees and costs for legal representation in the NVICP?
Both the petitioner and their attorney suffered here.
Congress quickly addressed this issue and split fees and expenses from pain and suffering. And a cap of $250,000.00 was added to the P&S. Somehow that does not provide comfort to the hundreds of petitioners who sought compensation from the NVICP in the early years.
After addressing the issue of P&S damages, Congress went silent on addressing three big remaining issues regarding attorney fees.
One, what to do about cases that drag on for several years, some as long as 15 years. Should attorneys who constantly work on behalf of their clients wait until the case has been decided before getting reimbursed for many of the costs incurred including expensive medical experts?
Second, what to do with petitions that were filed correctly, in good faith and have a reasonable basis only to be dismissed because of statute of limitations that was determined after petition filing. Hundreds of attorney fee applications from autism petitions were held in suspension because our government, the Sec’y of HHS and DOJ contended that they attorneys should not be compensated because the petition was dismissed due to statute of limitations.
Third, was it the intent of Congress not to address the issue of how to pay for attorney fees and medical expert costs when the petitioner is denied compensation?
The answer to the first question of paying interim fees was determined not by Congress, but rather by the courts. In Avera v HHS,[iv] the Court granted special masters to use their discretion in awarding fees and costs on an interim basis. Most of the time, the length of time before interim fees will be considered in three years. However, if the petitioner or his attorney can show financial hardship, special masters will consider for shorter periods of time.
By allowing interim fees, this cleared up a secondary problem facing petitioners. Medical experts would not have to wait four years, eight years, or even 15 years before getting paid. Many experts were saying no to the petitioners before Avera.
Cloer v Kathleen Sebelius
In answering the second question, The US Supreme Court ruled in favor of the petitioner’s attorney and against the wishes of our government in Cloer v Kathleen Sebelius[v]. This was a very big win for the petitioners. If the US Supreme Court ruled in favor of the Sec’ of HHS, another high hurdle would have been placed in front of future petitioners since statute of limitations was merely a subjective finding at best with autism petitions, not clearly defined by statute.
Good Faith and a Reasonable Basis