Vaccine Damage Compensation Reform Needs Help

[Guest guest]

Action Alert: Bi-Partisan Vaccine Damage Compensation Reform Needs Help

[if you are a member of the ASA, contact your local chapter, forward

to them this post, and get them to spread the word to all other fellow

members. This comes to our attention thanks to Lynn Whitmore and originates

from the National Vaccine Information Center.]

PLEASE LOBBY FOR PASSAGE OF THIS BILL

HR 1287

http://www.attorneyaccess.net/HR1287.htm

On March 28, 2001, HR 1287, The Vaccine Injured Children's

Compensation act of 2001, was introduced in the House of Representatives by

Congressman Dave Weldon (R-FL) and Congressman Jerrold Nadler (D-NY). Other

co-sponsors include Rep. Dan Burton (R-IN), Rep. Barney (D-MA), Rep.

Pete Sessions (R-TX), Rep. Jim McGovern (D-MA), Rep. Steve Horn (R-CA), Rep.

McCarthy (D-MO), and Rep. Jim (D-TX.

This legislation will help families who are trying to get compensation

for their children. You can call your Washington DC legislators at

202-224-3121 and ask for your member of Congress. If you do not know who

that is, ask the operator to help you identify that person. (Or use this

website to write a letter: http://www.house.gov/writerep/.)

When you reach the member's office, ask to speak to the staff person

handling health-related legislation. Give them the bill number and a short

explanation and ask them to become a co-sponsor of the bill. Have them call

Cong. Weldon or Cong. Nadler and offer their support. If any of the

provisions in this bill have a direct bearing on your ability to receive

compensation for your child, relate your story to the staff member. It is

more likely that they will be interested in helping. Ask to meet with your

representative when he/she is in the home district.

The original intent of the compensation program was to provide a quick

and easy way for parents to get financial help for their vaccine injured

children. The program is anything but quick or easy. This legislation is the

beginning of an effort to restore the bill back to the original intent of

Congress as to how this program was supposed to work.

Please call us the NVIC at 703-938-0342 and let them know if you need

more information.

WHAT DOES HR 1287 DO?

This bill provides for changes in four very important areas:

1. The Statute of Limitations

In order to file a claim under the Vaccine Injury Compensation Program

(VICP), it has to be brought within 3 years of the onset of the injury

claimed to have been caused by the vaccine(s). It does not matter that the

claimants may not have even known that the vaccine caused their injuries. HR

1287 will amend the statute to allow for what is called a discovery rule.

This means that the statute of limitations (SOL) would not begin to run

until someone knew or should have known that their injuries were caused by

the vaccine(s) and that they had a possible claim under the Vaccine Injury

Compensation Program. The time period for filing would be extended from 3

years to 6 years. The bill also has provisions which toll (stop the running

of) the statute of limitations during minority (until a child reaches age

18).

This provision will help the families who never got a correct

diagnosis of a vaccine injury and who did not find out about the program

until too late.

2. The Burden of Proof

In law, there are different burdens of proof that are required for

different things. For instance, to convict someone of a crime requires proof

" beyond a reasonable doubt. " Below that is a level of proof where something

has to be proven by " clear and convincing " evidence. Next down the ladder is

the burden used in traditional civil tort litigation, where the plaintiff

has to prove something is more likely than not, " by a preponderance of the

evidence. " For Veterans' Claims and Workers' Compensation Claims, a lower

burden is used, where the benefit of the doubt goes to the claimant.

In HR 1287, the Petitioner's burden of proof is reduced from the

" preponderance " standard to the same language used in Veterans' claims. This

bill states clearly that the purpose of the program is (as Congress

originally intended) to generously compensate the children and other victims

of vaccinations. It was Congress' intent to err on the side of

over-compensating, rather than under-compensating, these people. This bill

also makes it clear that this is a remedial program and the government

should not raise a claim that this is a " waiver of sovereign immunity "

(where the bill would be strictly construed against the Petitioners.)

Finally, the bill makes it clear that the government can still raise

the possibility of an alternate cause (something other than the

vaccination), but they must prove this alternate cause by " clear and

convincing " evidence.

3. Interim Fees and Costs

One of the reasons so few lawyers are willing to get involved and stay

involved in these cases is because the payment for attorneys is extremely

low compared to the rewards of traditional civil litigation. Claimants and

their lawyers must often wait years to receive reimbursement of their costs

and payment of the attorneys' fees. Lawyers are expected to compete in a

highly litigious environment, where the burden of proof is relatively high,

without the benefits of traditional civil discovery, and with small and

delayed compensation for their effort.

This bill would make it possible for claimants to petition, no more

than once every 90 days, for payment of interim fees and costs. This will

allow experts to be paid in a timely manner, and Petitioners will finally be

able to conduct the testing and studies necessary to prove their claims.

Remember that the attorneys for the government are paid every thirty

days and the attorneys for the children have to wait until everything is

finalized, in many cases, waiting for years. In the meantime, the burden of

financing the case falls on the shoulders of the family and the attorney.

This provision will help level the playing field for the attorneys who are

trying to help the families.

4. The Right to Refile

This bill allows for a petitioner to refile a claim if the original

claim did not meet the $1,000 unreimbursed expense requirement (now no

longer a requirement) or if the petitioner missed the deadline that is being

corrected by HR 1287. If passed, the petitioner would have the right to

refile within 72 months after turning 18 or within 24 months after the bill

becomes law, whichever is a longer period of time.