By Louis Conte
As parents fight bills circulating around state houses calling for the removal of exemptions to vaccines, it is important to remember that no one in state government is ultimately responsible for dealing with vaccine injuries. If a child is injured by a vaccine that law-makers like California Senator Richard Pan insists they must take, the only avenue of relief available is the National Vaccine Injury Compensation Program (NVICP). The very title of this federal program flies in the face of statements made by Pan who has claimed that the term ‘vaccine injury’ was invented by the anti-vaccine opposition.
States considering the removal of vaccine exemptions, take notice: Vaccine Injury is real. And your tax payers are footing the cost.
Vaccine injury is so real that a federal program has to deal with it. Congress passed The National Childhood Vaccine Injury Act in 1986. The Act established the NVICP, the Division of Vaccine Injury Compensation (DVIC) and the Vaccine Adverse Event Reporting System (VAERS), among other things. Congress created a no-fault compensation system to get pharmaceutical companies off the hook for vaccine injury claims and, hopefully, to create safer vaccines. They also sought to compensate those injured by vaccines because tort law describes vaccines as “unavoidably unsafe.”
Legislators like Pan assert that vaccines are completely safe and effective. If this were so, the National Childhood Vaccine Injury Act would not have been necessary. Asserting that vaccines never cause injuries actually undermines the protections that the federal government has granted vaccine manufacturers. Perhaps it is time for Congress to rescind the 1986 Act and let the industry prove that vaccines are completely safe in a civil court setting where litigants would have discovery, where Pharma would have to produce documents and where people like Paul Offit might have to take the stand and explain their conflicts of interests to a jury.
But giving families the right to sue vaccine manufacturers is not the deal being offered to parents. What’s offered is the removal of the fundamental right to look after the interests of their children.
States know that the National vaccine Injury Compensation Program is the only option that families of the vaccine injured have. When a person is compensated, states often seek to recover the money they have spent on the vaccine injured by placing a Medicaid lien on the case. This is often a significant amount of money, as in this case :
“A lump sum of $450,400.89, representing compensation for satisfaction of the State of Florida Medicaid lien, in the form of a check payable jointly to Petitioners and Agency for Health Care Administration Florida TPL Recovery Unit
P.O. Box 12188
Tallahassee, FL 32317”
While Pharma-funded legislators like Richard Pan continue to deny vaccine injury and manipulate their legislatures to remove medical freedom and parental rights, the National Vaccine Injury Compensation Program continues to function in silence and secrecy. Although states file with the NVICP to get some of their expenses reimbursed. It is remarkable that all of these bills hit state houses at the same time and there’s hardly a mention of the National Childhood Vaccine Injury Act of 1986.
This silence is striking because it was only a few months ago that the General Accounting Office (GAO) issued a report criticizing the NVICP for evading the intent of Congress by failing to promote the program’s existence.
Those running the program promised to do better but so far have done nothing. One would have thought the measles furor would have been the perfect time for the NVICP to re-assure the public that they had a place to go their child suffered a vaccine induced regression.
The vaccines for measles are known to trigger encephalopathy, or brain damage as noted on the Table of Vaccine Injuries. The reason that “MMR Table Encephalopathy” is on the Vaccine Injury Table is because of this research by the doctors who worked in the Division of Vaccine Injury Compensation in 1998:
In Acute Encephalopathy Followed by Permanent Brain Injury or Death Associated With Further Attenuated Measles Vaccines: A Review of Claims Submitted to the National Vaccine Injury Compensation Programby Robert E. Weibel, MD, Vito Caserta, MD, MPH, David E. Benor, JD and Geoffrey Evans, MD found that “The onset of neurologic signs or symptoms occurred with a nonrandom, statistically significant distribution of cases on days 8 and 9. No cases were identified after the administration of monovalent mumps or rubella vaccine…This clustering suggests that a causal relationship between measles vaccine and encephalopathy may exist as a rare complication of measles immunization.”
Strangely, California Senator Pan hasn’t thought to mention this study in any of his many public statements about his proposed law. Maybe he wanted to but the pharma lobbyists who follow him around wouldn’t let him. Odd that Vermont Representatives Till, Dakin, Poirier, Pearson, Bankroft and Briglin forgot to mention this information to their colleagues while pushing their bill to remove the philosophical exemption.
Pan also failed to report on this MMR injury case, which features a small Medicaid lien filed by his State of California:
Vaccine Injury - it’s a scary word because it implies that there is a real down side to all of this talk about the “social contract to support public health” and the “obligation of parents.”
Does one have a duty to give their child a drug that could lead to brain damage because of an ill-defined social contract where one party assumes all the risk that the other side won’t even acknowledge? If such a remarkable social contract really existed, one would expect that the actual risks would be openly and plainly presented.
But that is not the case with the NVICP. Those running the program are content to sit on the side lines and let the vaccine wars continue in state legislatures. The people who run the Division of Vaccine Injury Compensation know what vaccine injuries look like but they aren’t talking even though Congress intended them to.
The Pharma lobbyists looming over Richard Pan have friends looming over the NVICP.
In 2011, Mary Holland, Bob Krakow, Lisa Colin and I published Unanswered Questions From the Vaccine Injury Compensation Program: A Review of Compensated Cases of Vaccine Induced Brain Damage in the Pace Environmental Law Review . We found that the NVICP had been compensating vaccine injuries involving brain damage that included autism for over twenty years. Even though we gained access to a small percentage of the compensated cases, we found eighty-three featured autism. Our attempts to get truly comprehensive case outcome data were blocked despite our Freedom of Information Law request
Even with a small sample, we found that autism is a common occurrence in cases of vaccine induced brain damage.
Unanswered Questions concluded with a call for Congressional hearings on the NVICP and a full, independent assessment of those compensated for vaccine injuries. Our call went unanswered. Pharma supported organizations like Every Child By Two successfully derailed congressional hearing on the NVICP in 2013.
The Special Masters who preside over vaccine injury cases in the NVICP never fully disclosed how common autism was in cases of encephalopathy. This excerpt from section E of Autism General Order # 1 (7/3/03), in which Special Master Gary Golkiewicz established the Omnibus Autism Proceedings, is telling:
“One important caveat, however, is drawn to the attention of all petitioners and their counsel!
There may be cases involving autistic-like disorders which manifested following an injury defined in the Vaccine Injury Table. That is, a vaccinee may have suffered an episode involving a severe acute encephalopathy within 72 hours after a pertussis vaccination (DTP or DTaP), or 5 to 15 days after an MMR vaccination. If so, such an acute encephalopathy and any residual effects thereof would be presumed to be vaccine-caused pursuant to the Vaccine Injury Table. See 42 C.F.R. § 100.3(a) (10-1-97 version of CFR).5 However, this would apply only to cases falling within the current Vaccine Injury Table’s definition of “acute encephalopathy,” in which the vaccine suffered a sudden, dramatic, and severe change in level of consciousness lasting at least 24 hours. 42 C.F.R. § 100.3(b) (2) (i) (A) and (D). The incident must have been “sufficiently severe so as to require hospitalization,” though actual hospitalization at the time need not have occurred. 42 C.F.R. § 100.3(b) (2) (i). Autism cases involving Table Injuries have been compensated under the Program (emphasis added). If in a particular case there exist medical records demonstrating that such a qualifying “acute encephalopathy” occurred within the appropriate time frame, petitioner or counsel should bring that to the assigned special master’s attention so that, if appropriate, the case can be processed without delay as a Table Injury. Finally, petitioners should note that even after electing to have their case stayed pending the conclusion of the Omnibus Autism Proceeding, such election is not irrevocable. That is, if at a future time a petitioner determines that his own case should be separated from the Omnibus Autism Proceeding and processed separately, with the petitioner introducing case-specific proof of causation, such petitioner may request that a special master analyze his case. A special master will be assigned and the case will be processed as expeditiously as possible.”
Simply stated, the very order which established proceedings to determine if vaccines caused autism conceded that vaccines have caused autism.
In October of 2013, I had a conversation with an attorney named David Terzian, now retired, who was then representing petitioners in the NVICP. Mr. Terzian is highly regarded and previously worked for the Department of Justice Civil Torts Branch representing the Secretary of Health and Human Services in the NVICP. Mr. Terzian is the only attorney I am aware of who had experience from both sides of the NVICP Bar – a unique perspective. I reached out to him because Congressional Hearings on the NVICP were about to be scheduled by the House Oversight and Government Reform Committee and he had voiced concerns about the way the NVICP was handling annuities for compensated cases.
While discussing the Unanswered Questions paper, Terzian stated that it was acknowledged that autism as a result of brain damage in cases that met the criteria for table injury encephalopathy. This reality was readily acknowledged by him and others at DOJ representing the Secretary of Health and Human Services. Mr. Terzian stated “everyone knows this” and “it was understood in severe encephalopathy cases.” He noted further that the actual disagreement in vaccine injury cases leading to autism is over cases where autistic regression is gradual.
Terzian would know about encephalopathy with features of autism. He was the attorney on the Mojabi (No. 06-227V) MMR Table Injury case which fits exactly what Special Master Golkiewicz was speaking to in Autism General Order #1:
“DECISION AWARDING DAMAGES1
On March 23, 2006, Saeid Mojabi and Parivash Vahabi (petitioners), as the parents and legal representatives of their minor son, Ryan, filed a petition pursuant to National Vaccine Injury Compensation Program…Petitioners alleged that as a result of “all the vaccinations administered to [Ryan] from March 25, 2003, through February 22, 2005, and more specifically, measles-mumps-rubella (MMR) vaccinations administered to him on December 19, 2003 and May 10, 2004,” Ryan suffered “a severe and debilitating injury to his brain, described as Autism Spectrum Disorder (‘ASD’).” (Emphasis added)…Petitioners specifically asserted that Ryan “suffered a Vaccine Table Injury, namely, an encephalopathy” as a result of his receipt of the MMR vaccination on December 19, 2003. Id. In the alternative, petitioners asserted that “as a cumulative result of his receipt of each and every vaccination between March 25, 2003 and February 22, 2005, Ryan has suffered . . . neuroimmunologically mediated dysfunctions in the form of asthma and ASD.” On June 9, 2011, respondent filed a supplemental report pursuant to Vaccine Rule 4(c) stating it was respondent’s view that Ryan suffered a Table injury under the Vaccine Act – namely, an encephalitis within five to fifteen days following receipt of the December 19, 2003 MMR vaccine, see 42 C.F.R. § 100.3(a) (III) (B), and that this case is appropriate for compensation under the terms of the Vaccine Program.
A lump sum payment of $969,474.91, in the form of a check payable to petitioners as guardian(s)/conservator(s) of Ryan B. Mojabi, for the benefit of Ryan B. Mojabi, representing compensation for lost future earnings…($648,132.74), pain and suffering ($202,040.17), and life care expenses for Year One ($119,302.00). No payment is to be made until petitioners provide respondent with documentation establishing that they have been appointed as the guardian(s)/conservator(s) of Ryan B. Mojabi’s estate…A lump sum payment of $20,000.00, in the form of a check payable to petitioners, Saeid B. Mojabi and Parivash Vahabi, representing compensation for past unreimbursable expenses. A lump sum payment of $480.34, in the form of a check payable jointly to petitioners, Saeid B. Mojabi and Parivash Vahabi, and the Department of Health Care Services Recovery Branch -- MS 4720 P.O. Box 997421, Sacramento, CA 95899-7421…representing compensation for the satisfaction of the State of California Medicaid lien. Petitioners agree to endorse this payment to the State of California.”
David Terzian is not a whistle blower. He simply stated the truth and his statements are similar to those of experienced attorneys who have worked exclusively for petitioners over the years.
However, this conversation, placed along-side Special Master Golkiewicz’ Autism General Order # 1 and the Unanswered Questions paper indicates that some very important information about vaccine injury and autism has been “understood” but unsaid.
Except that it should be said. Information that autism as a result of vaccine induced brain damage is critical because we are in the midst of an autism epidemic, the cause of which is continually described as “mysterious.”
This information belongs to the public. The compensation fund is continually replenished by a tax on every vaccine administered. Case outcomes in the NVICP (not individual’s health information) should be open to public investigation.
And yet, exactly the opposite continues to be true.
Wayne Rohde, whom I often work with, recently received a response from HRSA via a Freedom of Information Law Request. Mr. Rohde sought historical data on case outcomes on cases in the NVICP – public information.
The information he received – a spread sheet of over 15,000 vaccine injury cases processed by the NVICP since 1988 – was redacted to the point of uselessness. One can understand the redaction of names for the sake of privacy. However, everything from docket numbers to attorney names was blacked out. The type of injury – blacked out. Most interesting – the vaccine that caused the injury – blacked out.
In essence, the ability to study the cases and learn something about vaccine injury – blacked out.
Why is a class of drugs, described by Senator Pan as completely “safe and effective” afforded such secrecy?
The answer is obvious.
Listening to Senator Pan, one would think that information about vaccines, vaccine safety and vaccine injury would be completely transparent and open to public inspection. These drugs are mandated, after all. Since vaccines are completely safe and effective, there should be nothing to hide. Yet, virtually everything about vaccine injury is hidden.
No American should support a system this broken and this deceptive. No American should re-elect legislators who support this system and who are willing to drive the expenses their states will incur from vaccine injuries.
By buying legislators like Pan, Pharma has insured that the tax payers will foot the bill. Pharma has taken the protection granted to it by Congress in The National Childhood Vaccine Injury Act and turned it into multi-billion dollar racket. That money is now being used to buy legislators who deny that vaccine injuries even occur, except when they do.
These are vaccine injuries that the federal government has grudgingly acknowledged and compensated, even when they blacked out the reality.
State legislatures shouldn’t force people to give their kids these drugs based on a system this secretive and deceptive. They also shouldn’t go along with dumping the cost on future generations.