Covid Vaccine Injury Payout Plan Push Comes After Emergency End

Thousands of Covid-19 vaccine injury allegations have been submitted to the federal government and are unlikely to be reviewed any time soon without intervention by the Biden administration and Congress, according to attorneys whose potential clients feel they have nowhere to turn.

Appendicitis, cognitive difficulty, abdominal pain, and abnormal heart rhythm are just some of the Covid vaccine-related injuries cited by the 8,208 individuals who have filed requests for benefits with the Health and Human Services Department’s Countermeasures Injury Compensation Program.

The CICP has reached only 749 decisions on claims related to Covid treatments, with four cases resulting in compensation.

Now, with the public health emergency officially over, attorneys say it’s time for the administration and Congress to move Covid vaccine injury claims to a program they say is better suited for addressing them. But doing so would require lawmakers to tackle some much-needed reforms.

“It doesn’t have the infrastructure yet,” Renee Gentry, director of the Vaccine Injury Litigation Clinic at the George Washington University, said of the other program, the Vaccine Injury Compensation Program. Even half of the Covid caseload “would double the size of the vaccine program. It would come to a crashing halt.”

“A lot of these people have devastating injuries, and they need at least a fair shot at compensation,” Gentry said.

‘Act Quickly’

Created in 2010 to pay out damages for people injured in sudden health crises like Ebola and the Anthrax scare, the Countermeasures Program had fewer than 500 claims before 2020, according to an HHS spokesperson. Legal and health experts say the program is opaque, slow-moving, and poorly equipped to handle the quantity of filings spurred by Covid-19 related injuries.

I get “calls all the time from people and they’re like, I spent all day trying to find a human being at the Countermeasures Program and there’s nobody there,” Gentry said.

On the last day of the public health emergency, the HHS announced the Countermeasures Program would handle Covid vaccine injury claims through 2024, a move that would keep Covid vaccine injury lawsuits out of the courts.

“They certainly had to do something to act quickly as the declared pandemic was ending so as to not flood the court system with civil claims,” said Christina Ciampolillo, president of the Vaccine Injured Petitioners Bar Association and attorney at Conway Homer PC.

Lawyers say the Vaccine Injury Compensation Program is better suited to handle Covid claims. Unlike the Countermeasures Program, the Vaccine Injury Program covers attorneys’ fees, has better payments for the injured, is widely viewed as more transparent, and allows claimants to appeal decisions.

But it’s unclear whether the thousands of Covid claims awaiting review could legally be switched from one venue directly to the other, or whether claimants can drop their challenges and refile in the Vaccine Injury Program, attorneys say.

What’s more, the Vaccine Injury Program also has a backlog, attorneys say, and is lacking the adjudicators to take on a variety of Covid vaccine injury allegations.

‘Provides Nothing’

People alleging injuries from vaccines have filed over 26,000 petitions with the Vaccine Injury Program, the HHS said. The HHS has deemed almost 10,000 compensable, for a total of $5 billion.

Getting a vaccine eligible for the VICP is a lengthy process. Once a vaccine is recommended for routine administration for children—which happened for Covid vaccines in 2022—the HHS has two years to recommend that it be covered. Congress would have to sign off on taxing the doses to fund the program.

The Countermeasures Program is funded via taxes held in a countermeasures fund through congressional appropriations.

The Countermeasures Program covers lost employment income, medical expenses, death benefits for survivors, and estate benefits for those injured by devices, medications, vaccines, and other countermeasures for responding to security threats or a public health emergency.

Covid vaccine injuries are incredibly rare. Over 674 million doses have been given to date, an HHS spokesperson said. Still, the number of Covid claims “significantly exceeds the previous volume and size of claims received by the program,” they said.

By keeping Covid vaccine injuries under the Countermeasures Program, Green & Schafle attorney David Carney said the HHS is “trying to provide ongoing protection to the manufacturers of the vaccines.” But “while they do that, they continue to provide no real recovery for people that are actually getting the vaccines that have been injured.”

“If you are an innocent child who has health insurance that covered your medical bills and you were injured, you have no recourse,” Carney said. “It doesn’t compensate for pain and suffering whatsoever.”

Carney said his firm has over 200 people signed up to get information on efforts to move Covid vaccine injury claims to the Vaccine Injury Program. He said roughly five times that number has contacted the firm for information, including callers with “devastating” stories of injured children.

Carney’s firm has filed a handful of cases in the Countermeasures Program, all of which he said involved individuals suffering blood clot injuries that led to death. Those cases, however, were filed two years ago, and the claimants “haven’t heard anything from HHS or anybody” about their cases, he said.

An HHS spokesperson said the agency was “committed to ensuring that all applicants have the opportunity to have their full circumstances reviewed.”

Needed Changes

No vaccine has ever come over from the Countermeasure Program in the way lawyers would like to see with Covid jabs, Gentry said.

Chris Webb, a vaccine injury attorney at Black McLaren Jones Ryland & Griffee PC, said he doesn’t foresee “thousands and thousands of cases being filed” if the Vaccine Injury Program open its doors to covering injuries from Covid vaccines.

At his firm, Webb has encountered a fair number of injuries that potential clients believe are linked to vaccination but are unlikely connected. He said roughly 50% of the Covid injury queries his firm gets result in further investigations.

Still, the Vaccine Injury Program is a better venue for the injured to seek recourse, attorneys say.

For one, unlike the Vaccine Injury Program, the Countermeasures Program doesn’t cover attorneys costs. That results in costly proceedings for clients and cuts down on incentives for attorneys.

Also, payouts are higher under the Vaccine Injury Program. In addition to past and future non-reimbursable medical and related costs, the Vaccine Injury Program pays up to $250,000 for projected pain and suffering. No pain and suffering payments exist under the Countermeasures Program.

A renewed effort on Capitol Hill could ease the transfer of those cases.

Rep. Lloyd Doggett (D-Texas) told Bloomberg Law he plans to reintroduce legislation soon to speed up the process and help the Vaccine Injury Program more quickly grapple with claims.

“‘While vaccine injury is exceedingly rare, it builds more confidence in the program if we provide reasonable remedies,” Doggett said. “The Countermeasure Program is very insufficient.”

Doggett’s previous bills would have automatically imposed an excise tax on vaccines that the HHS secretary added to the Vaccine Injury Program—circumventing the need for Congress to weigh in and thereby speeding up the process—and increase compensation from $250,000 to $600,000.

“I can understand why there may be some resistance or concern in the administration about shifting these claims to the vaccine injury compensation program, because of the huge backlog that is already there,” Doggett said.