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Back The relaxed rules of evidence and procedure were supposed to make it easier to recover compensation when children are injured or killed by reactions to childhood shots that the government requires as an entry to society. Instead, many attorneys maintain, the envisioned petition-hearing-award process -- administered jointly by the Department of Health and Human Services, Justice Department and U.S. Court of Federal Claims -- has deteriorated to the point of gross unfairness to injured children. The attorney complaints largely focus on two areas: costly delay and changing rules. Under the program, lawyers for the children and parents get paid no matter the outcome, but the fees often are much lower than they get in their home cities and aren't paid until resolution of the petition -- in some cases years after filing. The law firms thus pay up front the considerable costs for medical experts, legal research, transcribing, medical documentation and all other significant expenses involved in making a case. Then at resolution, they often have to defend their fees and expenses in special hearings, and after Justice Department arguments, frequently see a reduction by the court, which sometimes excises expenses as small as taxi fares. ``I was always suspicious of this program,'' said Edelman, who returned to traditional lawsuits after handling a couple of cases. ``I said, `I can't bankrupt my firm.' I recognized the part right away of driving the lawyers out of the program.'' A statistical database provided to Gannett News Service by the compensation program showed 76 attorneys still awaiting fee payment in cases in which compensation has been awarded -- some in cases dating back six years. The lawyers are even more upset over the recent HHS redefinition of brain damage and other injuries medically recognized as reactions that sometimes occur in the childhood series of shots. The changes in the official ``table of injuries'' drastically narrowed the period of occurrence and range of reactions that previously provided parents stronger claims and a simpler task of proving cause. The parents' lawyers must largely rely on these new, restricted definitions instead of the normal legal precedent allowed in civil court suits. ``There were those who said the Vaccine Injury Act was a fraud to draw into the program those who might have otherwise sued the big pharmaceutical companies,'' said Torrance, Calif., lawyer Andrew Dodd, who has represented scores of families in the compensation system. ``I don't subscribe to that, necessarily, but the government is promising kids a way out -- then taking it away.'' Under the current program, parents can file customary lawsuits against vaccine manufacturers or doctors in the regular court system -- their sole avenue of compensation before the Vaccine Injury Act -- only if they've gone through the federal compensation program first. If their petition has been dismissed as non-compensable by the U.S. Court of Claims, or if the award granted is rejected as inadequate by the petitioner, then they can sue in civil trial court -- a procedure often described as hit or miss, and almost totally reliant on the quality of legal representation. Some irate lawyers threaten to return to the system of dragging drug firms and doctors into court once again to settle these disputes. At a recent convention of the American Trial Lawyers Association here, several convened in a special meeting to discuss it. ``You can go back and win about 50 percent of these cases that were uncompensated,'' said Boston lawyer Michael Hugo, who handled more than 150 before the compensation program, but quit to return to the traditional court route. ``The drug firms are still defending cases now as vigorously as they ever did. They're still playing hardball, and we're going back to war.'' The lawyers have other complaints. One is an obscure clause in the vaccine act that requires petitioners to spend a threshold of $1,000 in unreimbursed expenses before qualifying for compensation. This tends to eliminate many welfare mothers, some families on federal health insurance, disabled children receiving SSI benefits, Medicaid recipients, some Native Americans and others. Five-year-old Candace Childers of Springfield, Va., severely disabled from her MMR (measles, mumps, rubella) shot and receiving state-administered Medicaid assistance, appears to be one of them. She cannot talk, walk, sit up, eat, drink or swallow, and has daily multiple seizures. When her mother, on welfare, filed a claim two years ago, she couldn't prove she spent more than $1,000. The HHS and Justice Department, although conceding the little girl was damaged by the vaccine and deserved compensation, held up working out a financial plan for Candace for almost a year while citing the $1,000 threshold in efforts to disqualify the mother. The hold-up came even though program officials have recommended HHS eliminate the $1,000 floorboard requirement. ``It's frustrating,'' Childers lawyer Bradley Horn said. ``This case shows how the Department of Justice gives you a hard way to go. They tried to knock off this case after conceding cause by niggling on the $1,000 loophole clause.'' Horn finally won on the $1,000 argument, but the financial plan to care for Candace for the rest of her life is still being worked out. John Euler, the Justice Department attorney who supervises 17 full-time attorneys defending HHS against vaccine claims, says his lawyers will continue trying to uphold the $1,000 threshold requirement: ``We support its removal, but as long as it is there, we have to follow the law.'' Euler and compensation program director Thomas Balbier deny the lawyers' accusations and defend the program. Euler says the Justice Department seeks review of attorney-fee reimbursement only about 10 percent of the time and that HHS averages less than 15 days in getting out attorney fee checks once fees are decided. Justice lawyers fight some claims so vigorously, he said, ``because part of our role is to protect the legal and medical integrity of the program -- to make sure that it is line with mainstream science.'' Balbier says that is the reason for the injury table changes. And he says some of the delays can be attributed to petitioners, too: ``It's important to understand the court has bent over backwards to allow petitioners and families all the time they need to get their claims together,'' he said. Euler and Balbier both referred GNS to a different list of vaccine injury attorneys for interview. ``You'll get a very different story from them,'' Balbier predicted. But the first one GNS called at random was Kirk McCarville of Phoenix. His story was similar to his peers. While complimenting the Justice Department's handling of the difficult legal areas of science and medicine, McCarville called his 10 cases before the program ``a difficult experience.'' ``You don't get paid for a lot longer period of time than if you filed in a local state system, and you have to go back to people who have been your adversaries and submit your fee application to them,'' McCarville said. ``It is very uncomfortable. ... We have not filed a case in a year-and-a-half. I would be hard-pressed to file another one.'' Many other lawyers have dropped out of the program. Some
parents are turning to other avenues of representation. George Washington
University law professor Peter Meyers runs a clinic at the university's law
school in which he helps law students represent parents filing claims. He thinks
HHS keeps the little-known compensation program under wraps because ``the
government has a vested interest in getting as close to a 100 percent
vaccination rate as they can.'' Parents are rarely informed of vaccine risks, he
says. ``You still have incomplete information given to people in terms of what
the risks are from vaccines,'' Meyers says. ``And I think the government is
presenting somewhat biased and incomplete information on the theory of giving
people some information, but not wanting to discourage anybody from being
vaccinated.'' |
