By Wayne Rohde and Louis Conte
In a recent decision in the Vaccine Court, more formally known as the National Vaccine Injury Compensation Program (NVICP), a Special Master (administrator to oversee proceedings) granted the petitioner’s (injured party filing a claim for compensation) motion to redact not only the petitioner’s name for proceedings going forward but also the entitlement ruling (decision the petitioner is eligible for compensation, process to move into damages phase) handed down in the fall of 2017.
Redaction of personal information is very difficult to obtain in the NVICP. Typically, the Department of Justice attorneys who represent the Secretary of Health and Human Services in the NVICP oppose motions to redact personal information. Special Masters rarely allow petitioners to do so.
Keep in mind that the NVICP exists because Congress passed the National Childhood Vaccine Injury Act in 1986. The Act essentially ended civil liability for vaccine manufacturers and medical professionals who administer vaccines.
In other words, an American citizen cannot sue a vaccine manufacturer. If someone claims to have been injured by a vaccine or a family member who died from a vaccine, they have to sue the Secretary of Health and Human Services (HHS), a Presidential Cabinet member, in the Federal Court of Claims.
What makes this specific redaction decision so interesting is the identity of the petitioner and her line of work.
In the motion for redaction, the petitioner stated that she holds a position with an organization which engages in public health advocacy related to vaccination. The petitioner expressed concern that public knowledge of her vaccine injury claim would negatively impact her credibility and professional relationships.
It seems that the Special Master and the Department of Justice attorneys agreed with the petitioner: Disclosing that you have suffered a vaccine injury – even one that you have been compensated for – can damage your professional career.
The Special Master ordered that the petitioner’s name be stricken from publicly available documents and replaced with initials.
In this case, the vaccine injury alleged a Shoulder Injury Related to Vaccine Administration (SIRVA). According to HHS statistics, SIRVA is the most common vaccine injury claim brought in the NVICP over the past 3 years, followed closely by Guillain-Bare’ Syndrome (GBS). We have written extensively about SIRVA in the NVICP, here, and here.
We will extend this medical professional the privacy the NVICP afforded her other than to note the petitioner practices medicine in the field of infectious disease.
The discussion that follows seems to resonate with old adage “do what I say, not what I do.”
A previous case
A few years ago, Wayne Rohde discovered another peculiar redaction decision in 2012 whereas the petitioner was denied. In her motion for redaction the petitioner, who won a large compensation award, claimed she needed privacy for personal safety reasons to protect the identity of her husband who worked in law enforcement. The petitioner, who lives in New York State, claimed a problematic relative would attempt to take her monetary award. But, of even more concern, was her concern for her husband who was working in an undercover duty in law enforcement. The petitioner was concerned her husband was in jeopardy if her name was released in a public document.
The Special Master in this case denied the petitioner’s motion for redaction.
Apparently, it is acceptable to protect the identity of medical professionals who might suffer criticism from fellow public health professionals but not acceptable for anyone else with a vaccine injury claim.
Mr. Rohde was curious as to why the Special Master denied the petitioner’s motion. So, he contacted the petitioner via phone call.
The petitioner answered the phone. Mr. Rohde introduced himself and explained why he was calling. The petitioner said that she did not know anyone by that name and hung up.
It was then he could sense that she was really fearful, being really scared and caught in a trap that was set by the NVICP and Special Master’s decision.
Within a couple of minutes, Wayne received a call from a New York State Trooper asking about why he as trying to contact her. Wayne gave him all some information, credentials, and the reason why he wanted to talk with her. While one the phone, the trooper googled Mr. Rohde and conducted a quick background check. Within 5 minutes, he mentioned that Wayne checked out and was a legitimate concerned individual. He would not talk more about the petitioner but did mention that he also had a family member who he believed was vaccine injured.
Our community is larger than we realize.
Back to the doctor
The Vaccine Court has granted a personal information redaction to a medical doctor who practices in the United States in the field of infectious disease. Is this doctor worried about what her peers will say about the petitioner? Is it out of concern that the public stop vaccinating because of this public health professional’s vaccine injury.
According to the HHS, the public has no right to know.
A few years ago, the Secretary of HHS balked at the idea of conducting a public awareness campaign about the NVICP, hiding behind the rationale that public would stop vaccinating if they know there was a federal program to compensate vaccine injury.
HHS has dedicated virtually no resources to publicizing the NVICP even though Congress mandated that they do so in the National Childhood Vaccine Injury Act.
Perhaps it is the very real fear that if the public was educated on the number of vaccine injuries and the very real devastating medical outcome that often follow from them, the public might start asking tough questions.
The Redaction Process
Typically, the DOJ attorneys that represent the Secretary of HHS aggressively fight a redaction motions.
In this case, they sat on their hands and let the Special Master know there was no objection.
Section 12(d)(4)(B) of the Vaccine Act, in relevant part, provides that:
A decision of the Special Master or the court in a proceeding shall be disclosed, except that if the decision is to include information:
- Which is a trade secret or commercial or financial information which is privileged and confidential, or
- Which are medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of privacy, and if the person who submitted such information objects to the inclusion of such information in the decision, the decision shall be disclosed without such information.
Mr. Rohde has written extensively about petitioner privacy, especially children. In his book, The Vaccine Court – The Dark Truth to America’s Vaccine Injury Compensation Program, there is an entire chapter to discuss redaction motions.
Bias in NVICP
There has been several actions by Special Masters that show extreme bias on denying redaction of petitioners. One of the more egregious acts was from Special Master Christian Moran and his decision to publicly post a partial fact finding hearing decision from a prominent Gardasil petition. By making this decision public, several pro-pharma bloggers and shills ran with the information and began a public shaming and ridiculing campaign against the petitioner.
Other medical professionals.
There have been several doctors and nurses who have submitted petitions for compensation of their injuries. Most of them have won damage awards. And many of them did not redact their decisions.
So why this doctor?
Maybe because those decisions were several years ago. Or maybe, in today’s climate of absolute obedience to the belief that all vaccines are safe and effective, any information to the contrary cannot be tolerated.
Even if a member of the public health community has been legitimately compensated by the United States Government for vaccine injury.
Wayne Rohde, author of The Vaccine Court – Dark Truth of America’s Vaccine Injury Compensation Program
Louis Conte, author of The Autism War and co-author of Vaccine Injuries
All books published by Skyhorse Publishing – New York City