How does the National Vaccine Injury Compensation Program (NVICP) and the Federal Court of Claims deprive petitioners, who are seeking compensation for their injuries, the opportunity to seek and retain legal counsel? Very cleverly. But it takes some understanding of how legal representation in the program has evolved and more importantly, how fees are paid.
Federal Court of Claims & 6th Amendment
The NVICP was established in 1986 and the legal proceedings are to be conducted within the Federal Court of Claims jurisdiction, located in Washington D.C. The Federal Court of Claims is the only federal court system that allows a person to sue the federal government.
Your right for legal counsel to represent you lies within the 6th Amendment. However, the right to legal representation is a matter for criminal proceedings not civil matters.
“In all criminal prosecutions, the accused shall enjoy the right…to have the Assistance of Counsel for his defense.” [i]
The Assistance of Counsel Clause includes, as relevant here, five distinct rights: the right to counsel of choice, the right to appointed counsel, the right to conflict-free counsel, the effective assistance of counsel, and the right to represent oneself pro se.[ii]
Attorney fee compensation
Congress authorized the payment of fees and costs to compensate attorneys that represented petitioners. Under the Vaccine Act, a special master who has awarded a petitioner “compensation” on a vaccine related claim “shall also award as part of such compensation an amount to cover . . . reasonable attorneys’ fees.” [iii]
So who pays for the petitioner’s attorneys and medical experts? The Vaccine Injury Trust Fund.
In the beginning, the fees and costs were capped at $30,000.00. The caveat is that the petitioner’s pain & suffering was included with that total. Can you imagine the consternation of a petitioner who suffered greatly from an injury and the special master awards only $5,000.00 in P&S because the attorney submitted a bill for $ 25,000.00 in fees and costs for legal representation in the NVICP?
Both the petitioner and their attorney suffered here.
Congress quickly addressed this issue and split fees and expenses from pain and suffering. And a cap of $250,000.00 was added to the P&S. Somehow that does not provide comfort to the hundreds of petitioners who sought compensation from the NVICP in the early years.
After addressing the issue of P&S damages, Congress went silent on addressing three big remaining issues regarding attorney fees.
One, what to do about cases that drag on for several years, some as long as 15 years. Should attorneys who constantly work on behalf of their clients wait until the case has been decided before getting reimbursed for many of the costs incurred including expensive medical experts?
Second, what to do with petitions that were filed correctly, in good faith and have a reasonable basis only to be dismissed because of statute of limitations that was determined after petition filing. Hundreds of attorney fee applications from autism petitions were held in suspension because our government, the Sec’y of HHS and DOJ contended that they attorneys should not be compensated because the petition was dismissed due to statute of limitations.
Third, was it the intent of Congress not to address the issue of how to pay for attorney fees and medical expert costs when the petitioner is denied compensation?
The answer to the first question of paying interim fees was determined not by Congress, but rather by the courts. In Avera v HHS,[iv] the Court granted special masters to use their discretion in awarding fees and costs on an interim basis. Most of the time, the length of time before interim fees will be considered in three years. However, if the petitioner or his attorney can show financial hardship, special masters will consider for shorter periods of time.
By allowing interim fees, this cleared up a secondary problem facing petitioners. Medical experts would not have to wait four years, eight years, or even 15 years before getting paid. Many experts were saying no to the petitioners before Avera.
Cloer v Kathleen Sebelius
In answering the second question, The US Supreme Court ruled in favor of the petitioner’s attorney and against the wishes of our government in Cloer v Kathleen Sebelius[v]. This was a very big win for the petitioners. If the US Supreme Court ruled in favor of the Sec’ of HHS, another high hurdle would have been placed in front of future petitioners since statute of limitations was merely a subjective finding at best with autism petitions, not clearly defined by statute.
Good Faith and a Reasonable Basis
The answer to the third question to compensate attorneys even when their clients were not compensated by the NVICP is a devilish debate and where the special masters try to hold a hammer over the attorneys.
I wonder how many times the following statement has been whispered or inferred within the discussion of attorney fees, “You must play ball or we will not compensate you for your work now and possibly in the future”? The statute allows for payment, yet the devil is in the details.
Within the NVICP, attorneys shall be compensated for fees and expenses when a client is successful with their petition for compensation from an injury or death.[vi] When a petitioner is not successful, the Special Masters can award attorney fees and expenses at their discretion.[vii]
And this is where it gets very tricky and recently, this is where we start to lose our ability to obtain legal counsel to represent our claims within the NVICP.
The Special Master uses his/her discretion to award fees using the Good Faith and Reasonable Basis standard.
Even if a petitioner is not awarded “compensation,” the special master “may award an amount of compensation to cover petitioner’s reasonable attorneys’ fees . . . if the special master or court determines that the petition was brought in good faith and there was a reasonable basis for the claim for which the petition was brought.” [viii]
Simmons v HHS
In Simmons v HHS, the special master dismissed the petition claiming influenza vaccine caused GBS, citing failure to prosecute and insufficient proof. [ix] However, the SM awarded fees with petitioner attorney arguing that his conduct was in good faith and supported by a reasonable basis, given the proximity for expiration of the statute of limitations at the time he filed the petition. [x]
The attorney was trying to protect the case against the fast approaching deadline for filing a petition. This is what a good attorney does, acting in the best interests of their client. Protecting their rights against the statute of limitations filing period.
The government objected in awarding fees. They appealed to the Court of Federal Claims citing “counsel did not have a reasonable basis for filing the petition and that the petition was not filed in good faith.”[xi]
In her opinion, Senior Judge Nancy Firestone of the Court of Federal Claims, reverses the special master’s decision to award fees, finds that the special master erred in awarding fees because the record before the special mater demonstrated that the counsel did not have a reasonable basis for filing the petition. [xii]
At the time of filing the petition, the client provided counsel with a copy of his medical records including vaccination. Counsel determined after consulting with his client, that he had a “potentially viable vaccine-injury claim”.[xiii] However after filing, the petitioner failed to communicate with his attorney, refusing to return phone calls and emails. Yet, the attorney kept the petition moving forward.
We now arrive at a point in this case where the attorney who zealously represents his client, protecting their legal rights, racing to file a petition before the clock strikes midnight with the statute of limitations, is now being second guessed of what is reasonable or not?
Petitioner’s attorney files for an appeal to the Court of Appeals for the Federal Circuit, one step below the US Supreme Court. In a three-judge decision, the court affirms the Judge Firestone’s decision to vacate the special master’s decision to award fees and costs.[xiv]
And this is how the program and the courts are constricting our opportunity to seek and retain legal counsel within the NVICP. The attorneys are being second guessed when filing a petition near the filing deadline.
Aggressive Screening of New Clients
Since this appellate ruling, a few attorneys have now altered their practice and screening of clients by not taking any new clients if the petitions are within 4 to 6 months of the statute of limitations. They cannot take the risk of losing their costs, which can be several thousand dollars associated with verifying medical records and filing a petition.
And after the CAFC ruling in Simmons v HHS, there have been a few other attorney fee applications denied only after filing their petition, obtaining medical records, a thorough examination of those records, discussions with medical experts associated with the case and to have the special masters after all this has been done, rule that the petitioner has no reasonable basis to continue.
The attorneys will file motions to leave as counsel and motions for fees and costs up to the point of the special master determination. Yet the special masters deny the fees and costs, all the work the attorneys have done representing their client and costs incurred are not compensable.
This is the current state we are facing within the NVICP. Shutting the door to compensation for all petitioners, especially if you are a child, unless you have an adult petitioner with a slam dunk case of GBS or SIRVA. Attorneys are now screening new clients very aggressively. And we are denied our opportunity to seek legal representation.
Here is a scenario of screening of a potential client and saying no to legal representation. Petitioner wants to file a petition claiming that her miscarriage was caused by her influenza vaccination. On the surface this type of petition should be filed. But add in the fact that the petitioner did not approach an attorney soon enough. The statute of limitations is fast approaching. Three months remain of the statute of limitations deadline. When the petitioner suffered a miscarriage and the filing deadline.
Petitioner has the medical records showing the date she received the influenza vaccine. No problems so far. File the petition to stop the tolling for statute of limitations.
Yet the attorney will not have time to request complete medical records of the mother’s health only to learn that she had the flu as well as being vaccinated while pregnant.
How do you determine if the vaccination caused the miscarriage or did some other medical condition? The attorney will have to retain one or more very expensive medical experts to issue their opinions. Fast forward a couple of years to the date the special master issued decision to dismiss because no medical theory has been proffered to logically state the vaccine not the mother’s medical condition caused the miscarriage.
And then rules against the attorney for thousands of dollars in fees and medical expert costs because of a lack of reasonable basis. This is happening now and will continue to happen.
The 6th Amendment allows for criminals to retain legal counsel. Yet petitioners in the NVICP are being denied legal counsel.
Just another example of how our government is shutting the door on those who have been injured or have died as a result of a vaccine.
[i] The Assistance of Counsel Clause is a part of the Sixth Amendment to the United States Constitution
[iii] 42 U.S.C. § 300aa-15(e)(1).
[iv] Avera v HHS, CAFC 2007-5098, Feb 6, 2008
[v] Supreme Court of United States, SEBELIUS, SEC’Y OF HHS v. CLOER 12-236, May 20, 2013
[vi] 42 U.S.C. § 300aa–15(e).
[vii] 42 U.S.C. § 300aa-15(e)(1).
[viii] 42 U.S.C. § 300aa-15(e)(1).
[ix] Simmons v HHS, 13-825v, April 30, 2014
[x] Simmons v HHS, 13-825v, April 14, 2016
[xi] Court of Federal Claims, Senior Judge Firestone, Simmons v HHS 13-825v, Sept 21, 2016 pg 2
[xii] Court of Federal Claims, Senior Judge Firestone, Simmons v HHS 13-825v, Sept 21, 2016 pg 2
[xiii] Simmons v HHS, 13-825v, April 14, 2016
[xiv] CAFC 2017-1405, Nov 7, 2017
Wayne Rohde, author of The Vaccine Court – The Dark Truth of America’s Vaccine Injury Compensation Program
Wayne Rohde is author of Vaccine Court, from Skyhorse Publishing.