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.
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.
Wayne 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.