On November 18, 2017, an article was published in The Pharmacy Times by Ned Milenkovich, PharmMD, JD outlining possible liabilities of pharmacists as they administer vaccines. The writer correctly points out that “pharmacists who improperly administer a vaccine or fail to conform to industry-accepted norms could be found liable. These allegations would be directed to the pharmacist’s administration of the vaccine and not to the product itself”.
Let’s examine in greater detail what the writer is telling us. SIRVA or Shoulder Injury Resulting from Vaccine Administration is the leading injury for all petitions filed in the NVICP since 2015. It is the result of improper administration of a vaccine generally too high in the arm, in the shoulder joint or bursting of the bursa sac, causing severe pain and in many cases, surgery to correct the damage.
Most of these injuries occur in retail pharmacy or pop up vaccine shops in grocery stores or shopping malls. HHS and CDC acknowledge back in 2015 that the main reason is the poor training or in some cases, the lack of training. Lou Conte and I wrote about this very issue in AoA a couple of years ago.
Pharmacists and those who administer vaccines in retail pharmacies or pop up shops lack medical training to ask patient for contraindications or other medical conditions that should be discussed with doctor and patient. Lack of true informed consent and failure of duty to warn are two areas that are missing from most discussions.
A duty to warn is a legal concept indicating that a party will be held liable for injuries caused to another, where the party had the opportunity to warn the other of a hazard and failed to do so. In this example, did the pharmacist offer the VIS prior to the administration of the vaccine, allowed the customer to read and ask questions, and did the pharmacist ask the proper medical background questions prior? Highly doubtful since this practice is not followed by the “highly trained” doctors and nurses in a clinic or hospital setting.
Can someone who suffered a SIRVA injury file a civil law suit directly against the pharmacist and the pharmacy? You could. However, the best course of action for compensation of the injury probably resides inside the NVICP. Why?
SIRVA injuries are now considered an ON-Table injury within the NVICP and would be fast-tracked for adjudication and compensation if the proper medical records are in order. It would be faster and less adversarial than a traditional civil lawsuit. The petitioner will not pay for attorney fees and costs unlike a plaintiff in the civil suit. The Program allows for lost wages and future earnings compensation.
And there is still the legal possibility for those who filed compensation in the NVICP even after receiving payment for their injuries, to file a civil suit if that person believes the injury warrants further compensation. That has not been tested. But it could.
For all my writings and criticisms of the NVICP over the last seven years, this might be the first time that I state the Program is the best choice for those who have suffered a SIRVA injury.
Wayne Rohde, author of The Vaccine Court – The Dark Truth of America’s Vaccine Injury Compensation Program