COVID-19 Vaccines' Unique Injury Compensation Program (CICP) Challenged

The National Vaccine Injury Compensation Program (VICP or NVICP) was established by the 1986 National Childhood Vaccine Injury Act (NCVIA) which was a response to concerns about the diphtheria, pertussis, and tetanus (DPT) vaccine.  The Office of Special Masters of the U.S. Court of Federal Claims administers a no-fault system for litigating vaccine injury claims - except for the COVID-19 vaccines.  People claiming injuries from the COVID-19 vaccines have to file a claim with the Countermeasures Injury Compensation Program (CICP). Both the NVICP and the CICP are part of the Health Resources & Services Administration (HRSA), but the claims outcomes have been quite different:

https://reason.com/2023/11/21/lawsuit-covid-vaccine-injury-claims-diverted-to-unconstitutional-kangaroo-court/

Lawsuit: COVID Vaccine Injury Claims Diverted to Unconstitutional 'Kangaroo Court'
A war on terror–era program is the only legal avenue for people seeking compensation for a COVID vaccine injury.
By Christian Britschgi | November 21, 2023

People injured by the COVID-19 vaccines are suing the federal government, claiming the federal program they're forced to pursue compensation through is an opaque and unconstitutional "kangaroo court" that unjustly rejects almost all claims it receives.

"It has become far more obvious that the program offers nothing close to due process," says Christopher Dreisbach, the legal affairs director for React19, a patient group of the vaccine injured. "There's not [just] one thing about the program that can be tweaked and be fixed."

React19 is one of several plaintiffs challenging the constitutionality of the Countermeasures Injury Compensation Program (CICP). The other plaintiffs are all individuals whose compensation claims were rejected by the CICP, despite many having diagnoses from their doctors that the severe injuries they experienced within a few hours or days of receiving a COVID-19 vaccine were a result of the vaccine.

Their lawsuit was filed in October in the U.S. District Court for the Western District of Louisiana.

The CICP is currently the only avenue through which those with a COVID-19 vaccine injury can seek compensation.

A mix of federal law and pandemic-era emergency declarations bar the vaccine injured from suing vaccine manufacturers in civil court. Those with a COVID-19 vaccine injury are also prohibited from pursuing compensation through the standard Vaccine Injury Compensation Program (VICP)—a decades-old program that approves about 50 percent of injury claims in an expedited civil court–like process.

Each year, the VICP paid out $200 million in compensation and attorneys' fees, all of which are funded by an excise tax on vaccines.

Contrast that with the CICP, which has paid out a total of around $30,000 compensating eight people claiming a COVID-19 vaccine injury.

That's out of 12,358 total COVID-related claims the CICP has received, according to the latest federal data. The vast majority of those claims are still pending review. Of the 1,600 claims that the CICP has decided, roughly 98 percent were rejected.

The lawsuit filed by React19 and other patients argues the CICP's high rejection rate is a product of a flawed design that includes an exceedingly short deadline for filing for compensation and an impossibly high burden of proof for showing an injury was caused by a vaccine.

People must file a CICP claim within one year of vaccination. That compares to the VICP deadline that gives people three years following the onset of vaccine injury symptoms to file a petition.

"Most of us don't know what's wrong with us for over a year if we can ever get a diagnosis," says Dreisbach, who himself suffered a COVID-19 vaccine injury. "So many in our community don't even know the program even exists."

Of the 1,588 claims CICP has rejected, 933 of them have been for missed deadlines.

In order to get compensation through the CICP, claimants must also show "compelling, reliable, valid, medical, and scientific evidence" that their injury was caused by a COVID-19 vaccine.

By comparison, the VICP has a pretty low threshold for proving a vaccine injury. People who suffered one of several listed "table" injuries soon after receiving their vaccine are presumed to have been injured by the vaccine. Those who suffer a nontable injury need only show by a preponderance of the evidence (i.e., that it's more likely than not) that they were injured by a vaccine.

The higher burden of proof claimants must show the CICP is compounded by the fact that less scientific evidence exists about the effects of the recently invented COVID-19 vaccines.

"When you're talking 40,000 to 60,000 in a study, we know pretty well short-term side effects, but we don't have very much of an idea of what the long-term side effects will be," says Katharine Van Tassel, a law professor at Case Western Reserve School of Law who co-authored a book on the Food and Drug Administration.

Van Tassel says that while vaccines are safe, "we did not have very much time to study [COVID] vaccines, so we know the risk of injury was higher."

The CICP's high burden of proof is compounded by the fact that it's also a purely administrative process, with few guaranteed rights for those seeking compensation. Federal bureaucrats review and decide claims on their own. Claimants have no right to a lawyer to argue their case against the government, no right to submit expert evidence, and no right to appeal a rejected claim to any court.

That all contrasts with the quasi-judicial VICP, where petitioners are guaranteed a lawyer who can submit expert evidence on their behalf and a neutral special master (judge) decides cases. People in the VICP can also appeal a rejected petition all the way up to the U.S. Supreme Court. If that doesn't work, they can then sue vaccine makers in civil court.

In addition to all these problems is the fact that the CICP was, prior to COVID, a little-used program that's arguably been swamped by the huge number of claims it's received.

The CICP was first authorized in 2005 by a piece of war-on-terror legislation intended to encourage companies to produce emergency countermeasures to a bioweapons attack or a similar disaster by shielding them from lawsuits.

Prior to the pandemic, it had received only 500 claims and paid out compensation to only 30 people (mostly for swine flu vaccine injuries).

Van Tassel says that the government is within its powers to suspend people's normal right to sue companies for damages, provided that it also provides anyone claiming an injury "a reasonable alternative remedy" to sue for damages.

The CICP's high standard of proof, short filing deadlines, and lack of any real procedural rights all cause it to fall woefully short of being a "reasonable alternative remedy," she says.

The claims in the lawsuit from React19 and other plaintiffs that the CICP violates the Fifth and Seventh Amendments' guarantees of due process and jury trials are on firm ground, she says. "I think this is a very strong lawsuit," she tells Reason.

There are various congressional efforts to help those with COVID-19 vaccine injuries.

Rep. Lloyd Doggett (D–Texas) has introduced two bills that would shift COVID-19 vaccine injury claimants into the VICP and then modernize the VICP process. Another much more modest bill proposed by Sen. Robert Casey (D–Penn.) would extend the deadline for filing COVID-19 vaccine injury claims.

Last year, Sen. Mike Lee (R–Utah) also introduced a bill that would reform the CICP to make it more like the VICP program, with special masters deciding cases in federal claims court.

None of these efforts have made much headway in Congress, much to the frustration of vaccine-injured advocates.

"Our community needed help yesterday. We've been asking Congress to take action for over two years, our hope is that this lawsuit forces their hand," says Dreisbach.