The Lady Varnishes: Dorit Reiss Glosses Over Flaws in the Vaccine Injury Compensation Program Identified in a New Government Report
Note: A new Government Accountability Office (GAO) investigation highlights some of the shortcomings of the Vaccine Injury Compensation Program (VICP) . AoA publishes David Foster’s submission to the pharma/government funded website Shot of Prevention in response to Dorit Reiss’s duplicitous review of the report.
By David Foster
Dorit Reiss has a history of glossing over vaccine safety issues so her approach taken here in commenting on a new GAO report [1,2] on the National Vaccine Injury Compensation program (NVICP) is not surprising. In the past she has used terms like "plaintiff-friendly", "reduced causation standards" and "relaxed evidence rules" to characterize this program.  I would argue that no one who is actually familiar with this program, or has personally talked with anyone who has had the misfortune to endure it, would consider Dorit Reiss a credible source after reading these comments.
I postulate here that Dorit's conclusions regarding the NVICP are pre-ordained. I do not believe for a second that she had any intention of actually investigating the NVICP or reporting fairly on the GAO report. Why do I say that? Consider the following. She is commenting on a GAO report, and she includes the link to the report's summary in her article, in which she claims:
"Basically, the court removed the requirement of general causation: petitioners no longer have to show that there is scientific evidence supporting a causal connection. If there is a theory that sounds probable to the Special Masters – lawyers, not scientists – and a temporal connection, a case may win even absent scientific support. [...] But it is a very real relaxation of the petitioners’ burden to prove their case, allowing them to win, on occasion, with just a theory supported by one expert." 
As is always the case with Dorit Reiss, it is not necessarily what she says that is most important, but what she leaves out. In this case, she neglects to mention the following (which comes from the SUMMARY PAGE OF THE REPORT SHE IS COMMENTING ON):
"Since fiscal year 1999, HHS has added six vaccines to the vaccine injury table, but it has not added covered injuries associated with these vaccines to the table. This means that while individuals may file VICP claims for these vaccines, each petitioner must demonstrate that the vaccine that was administered caused the alleged injury. HHS is considering adding covered injuries associated with these vaccines; but as of September 2014, it had not published any final rules to do so."
Did you catch that?
The NVICP has a list of "Table Injuries" which is essentially a list of injuries for which HHS will presume causation, for each vaccine recommended by the Advisory Committee for Immunization Practices (ACIP). Don't you think it would be important to mention that HHS has neglected (I use that word very much on purpose) to add any new injuries to the table for ALL vaccines added since 1999? For the record, that is 15 years ago and in that time SIX new vaccines, most in multiple doses, have been added to the schedule.
In our online conversation Dorit claims that for "regular" (off-table) injuries "the requirement of general causation is basically waived".  But this is not consistent with the following from the very GAO report she is supposedly commenting on: "Individuals seeking compensation may submit claims for injuries not listed on the table (called off-table injuries) but they need to demonstrate by the preponderance of the evidence that the vaccine caused the alleged injury."
Did you catch that?
Dorit portrays the NVICP as no-fault with relaxed standards of causation even for injuries not covered by the injury table, but this is not the case. For any injuries related to the last SIX vaccines added to the recommended list, plaintiffs are required to demonstrate causation.
In addition, there are two glaring problems I see with the GAO's report, and it does not surprise me one bit that Dorit fails to mention either of them. First, in the summary page under the heading "What GAO Found" , the text includes some quite flattering statements like: "In all but 1 year since fiscal year 2009, the program has met the target for the average time to adjudicate claims (about 3.5 years)". Now doesn't that sound like a tortured attempt to find something positive to say? And by the way, doesn't 3.5 years seem like an awful long time to compensate families of children who have died or were permanently disabled and require lifelong medical care?. But please go to the link for the summary  and look at the pie chart...the first thing that jumps out at you is that over half of all claims filed since 1999 have taken LONGER THAN 5 YEARS to adjudicate. That would seem like it merits reporting, either in the text of the GAO report or by the likes of Dorit Reiss.
My second problem with the GAO report involves the following two statements contained therein:
"Since fiscal year 1999, HHS has added six vaccines to the vaccine injury table, but it has not added covered injuries associated with these vaccines to the table." 
"HHS has authority to promulgate rules to modify the vaccine injury table when certain criteria are met. HHS is also required to amend the table to include a vaccine within 2 years of the Centers for Disease Control and Prevention’s recommending it for routine administration to children." 
I mentioned earlier that six vaccines have been added to the Table since 1999, but no injuries associated with those vaccines have been added. I would argue that having a requirement that HHS add a new vaccine to the Table within 2 years of being recommended by ACIP, but not requiring that any associated injuries be added as well, is absolutely meaningless. It's like a Speed Limit sign with no numbers on it. For all vaccines being recommended in the past 15 years, the NVICP no longer has reduced standards of causation, there is no presumed causation and the plaintiffs are instead required to prove causation. This requires expert testimony and can be very expensive.
Dorit Reiss is critical of a report from the AP  which claims that claimants are kept waiting by the NVICP. Perhaps if she actually interviewed folks who have been through the program, or looked at case reports, she would have a different understanding of the problems inherent to this program. Instead, she relies on...well...honestly we can't be sure what she relies on because as usual she does not reference the basis for any of her claims.
For example, while discussing a specific NVICP case highlighted in a Northwestern article which also discusses the AP report , she claims very matter-of-factly that seizures are not caused by DPT vaccine, but she admits that encephalophy can be caused by the DPT vaccine. See this is the sort of tortured logic that one has to endure when reading anything from Dorit Reiss. Why? Because seizures are one of the symptoms of encephalopathy: "Encephalitis generally begins with fever and headache. The symptoms rapidly worsen, and there may be seizures (fits), confusion, drowsiness and loss of consciousness, and even coma." 
This is sheer brilliance right! Because a vaccine can cause encephalopathy, but the encephalophy itself is what caused the seizures, the vaccine is not what caused the seizures. HHS and the CDC uses the same ridiculous logic to deny that any claims have been awarded for cases of autism.
I guess it would have been easier for me to refer to the NVICP Injury Table itself and simply point out that encephalopathy is listed as a "table injury" for DPT vaccine, and note that MRI scans showed brain damage following the vaccine and this suggests some form of encephalophy when seizures are involved.
In my online conversation with Dorit Reiss about the NVICP I had pointed out that the GAO report was critical of the NVICP in a number of ways. She denied this and asked me to please point out the criticisms. They are quite easy to find in the GAO report, as they are in fact the section sub-headings:
- Most Claims Filed Since Fiscal Year 1999 Have Taken Multiple Years to Adjudicate [over half have taken more than 5 years]
- Vaccines Have Been Added to the Vaccine Injury Table since Fiscal Year 1999 without Covered Injuries, Resulting in More Off-Table Claims
- Changes in the Vaccine Injury Table Contributed to More Claims for Off-Table Injuries and for Injuries in Adults
- Information on VICP Petitioner Experience Is Limited
I would argue that this last criticism is perhaps the most significant. For their report on the NVICP the AP conducted over 100 interviews of petitioners to learn about their experiences with this program. Perhaps that is why their report was so critical of the program. Even the GAO report was critical of the NVICP, although it was limited to considering institutional problems rather than the experiences of the petitioners themselves.
Perhaps it would be a good start if all of us, myself included, could stop calling these people "petitioners", and remember that those entering the NVICP are families that have either lost or must now care for a loved one after possibly suffering a severe adverse vaccine reaction in service to the "Greater Good".
David Foster is an IT engineer with BS degrees in Mathematics and Psychology, with respective emphasis on statistical methods and experimental design. He has been following vaccine safety issues for 20 years, first as an obsessive hobby and then as a parent.
 GAO Report (summary): http://www.gao.gov/products/GAO-15-142
 GAO Report (full): http://www.gao.gov/assets/670/667136.pdf
 Comments section of Interlochen Public Radio article "Whooping cough outbreak sparks vaccination debate"
 The Vaccine Injury Compensation Program: What Does the AP Report Really Show? -Dorit Reiss
 AP IMPACT: 'Vaccine court' keeps claimants waiting
 AP IMPACT: 'Vaccine court' keeps claimants waiting
 What is encephalitis? What causes encephalitis?
 NVICP Vaccine Injury Table