A continuing series examining the NVICP aka The Vaccine Court
In recent weeks, you might have seen and read several articles posted by attorneys that practice in the NVICP, discussing the compensation awards they achieved for their client, the vaccine injured petitioner. They all have a common theme. Not the fact they are winning some petitions, but rather the actual type of vaccine injury.
In the November 2014 GAO Report presented to Congress on the National Vaccine Injury Compensation Program (NVICP), the report pointed out one indisputable fact that the Program is no longer about childhood vaccine injuries. It is a program with the majority of petitions filed from adults, nearly 80%. And the vast majority of those petitions are from injuries as the result of the influenza vaccine. The alarming trends of injuries from the influenza vaccine are Guillain-Barré Syndrome(GBS) and Shoulder Injury Related to Vaccine Administration, (SIRVA).
We are familiar with GBS and the effects on many people around the globe, similar to polio. There is even credible studies that show what we know today as GBS was often diagnosed as polio 60-80 years ago. GBS emerged on the national scene back for many people back in 1976 when the CDC lied to the American public and to Congress about the pending epidemic of Swine Flu. Because of the large immobilization to vaccinate people against the Swine Flu, GBS became a horrible injury for many people nationwide.
Guillain-Barré syndrome can affect anybody. It can strike at any age and both sexes are equally prone to the disorder. The syndrome is rare, however, afflicting only about one person in 100,000. Usually Guillain-Barré occurs a few days or weeks after the patient has had symptoms of a respiratory or gastrointestinal viral infection. Occasionally surgery will trigger the syndrome. In rare instances vaccinations may increase the risk of GBS.”
GBS is a vaccine injury and the cases compensated by the NVICP show this clearly.
But what about SIRVA? It can be described as “shoulder pain that is a common transient side-effect of vaccination. Infrequently, patients can develop prolonged shoulder pain and dysfunction following vaccination. Common clinical characteristics include absence of a history of prior shoulder dysfunction, previous exposure to vaccine administered, rapid onset of pain, and limited range of motion. The proposed mechanism of injury is the unintentional injection of antigenic material into synovial tissues resulting in an immune-mediated inflammatory reaction. Careful consideration should be given to appropriate injection technique when administering intramuscular vaccinations to reduce the risk of shoulder injury.” [i]
The vaccine-related over-penetration that likely led to SIRVA could have been prevented by refining the Centers for Disease Control and Prevention's current injection guidelines.[ii]
Basically we have a medical condition caused by a flu shot being injected too high on the arm. Why is this happening? Let’s go back to the NVICP. It is a relatively new injury being adjudicated by the program. Ok, if it is new, what is the reason why we are seeing so many petitions filed in the program? Is it a new variation of the flu vaccine? The answer is no.
The Program as it stands today is doing an exceptional job handing all these influenza petitions and we are seeing a major uptick in the numbers. Roughly 25% more petitions will be filed as forecasted by HHS compared to 4 years ago. And the long term forecast is for large increases each year. The Court under the direction of Chief Special Master Denise Vowell has established a Special Processing Unit to handle the influenza petitions with great expediency. These petitions are fast tracked. Most of these petitions will take approximately 1 year to complete and the injured party receiving compensation. This is compared to the 3-4 year journey for other petitions.
But it still does not answer why we are seeing a large influx of influenza petitions claiming SIRVA. The answer lies in the timing of the injuries. Most of these petitions filed with vaccination dates in 2013 and 2014. What else have we seen change in the landscape of flu vaccinations during this time period? The answer is amazing.
Most of these SIRVA injuries occur because of improperly trained clinicians or personnel administering the vaccine. And most of them are from retail pharmacies and mobile clinics. Having read a few hundred case decisions or rulings of entitlement associated with the influenza vaccine, the common theme is the vaccine was administered at a Walgreens, CVS, or other retail pharmacy, or some of these mobile clinics. The aggressive marketing to vaccinate everyone with the influenza vaccine has resulted in many people suffering from poor training of vaccine administration.
In Minnesota, during the 2014 legislative session, a bill was introduced to allow dentists to administer the influenza vaccine. The thinking was to get more people vaccinated. Can you imagine getting your flu shot while your dentist works on your tooth or the hygienist cleans your teeth?
The SIRVA injury is nothing to write off. It is serious and often very painful to the injured party. Think about losing the ability to use of one of your arms, either temporarily or in some instances, a more permanent loss of the use of your arm.
This type of injury begs the question whether you can sue the vaccine manufacturer for damages or the doctor or clinician for damages as the result of the vaccination, can you seek a remedy against a medical practitioner who injected a vaccine without proper training, resulting in a debilitating injury, not related to the actual vaccine? There has been some discussion by a few attorneys in the Vaccine Bar about this very issue. The NVICP does not shield improper training from liability.
The Secretary of HHS, in coordination with the CDC and IOM, has recognized GBS and SIRVA as known injuries and is working to establish it in the NVICP as a table injury. Currently, these types of injuries are treated as Off-Table or causation injuries. Most of these injury petitions are compensated. However a few have been dismissed, mainly due to incomplete medical records such as vaccination dates or the lack of medical treatment.
The cost to the petitioner before filing a petition for compensation can be very high. Several doctor appointments, probably paid by insurance. The very costly MRI expense, hopefully paid by insurance. And it might require surgery to fix the injury. But if you need the use of your arm for work (think musicians, doctors, office staff, parent of a special needs child, and the list goes on and on), that loss is not paid by insurance.
Many people who have developed SIRVA from retail pharmacies or mobile clinics have contacted these companies directly. And many have received direct compensation for their injury. However, the compensation is rather small, usually in the $10,000 - $50,000 range. Yet the injured party is not informed about the NVICP or their right to file for compensation. Even more troubling is the fact that many of the injured do not receive proper medical records or other documentation proving receipt of the vaccination.
You can assume that this makes the Secretary of HHS and DOJ civil torts division very nervous. And sooner or later, there will be communication, if not already, to corporate legal departments representing these retail pharmacies to discontinue this practice. Any kink in the shield of legal immunity of vaccines has the attention of our federal government and the pharmaceutical industry. SIRVA is not a disease but the result of improper administration of a vaccine.
The point here is with the big push by the CDC, HHS, the media, and now retail pharmacies and mobile clinics promoting flu shots, it is really buyer beware. And allowing these businesses to administer more than just an influenza vaccine, this is clearly a big problem for the Program. If you must, don’t receive a vaccination in the drive thru window retail outlet or sitting in a chair at your neighborhood grocery store. And by the way, those pharmacies push the shingles vaccine. That vaccine is not covered by the NVICP, thus you are really on your own.