Who Calls the Shots?
Vaccines are indisputably a crowning public health achievement, credited with the elimination of some devastating diseases. But in the rare instances that vaccines do cause harm, such cases are heard by a specialized court that almost no one has heard of.
Two generations ago, parents credited vaccines with preventing polio and whooping cough. Today, they’re just as likely to associate vaccines with autism. Visit a Mommy & Me class or an online parenting forum, and you’re bound to encounter parents who say they have decided to delay or even skip certain shots against the advice of their pediatricians because they’re afraid that vaccines are not safe.
Anna Kirkland, Arthur F. Thurnau Professor and associate professor of women’s studies and political science, disagrees.
“In fact,” she says, “there is scientific consensus that parents’ top health concerns—autism, ADHD, compromised immune systems—have no relationship to vaccines at all.”
But while vaccines have been proven to have no relation to these problems, there are very rare instances where vaccine injuries do occur. “Because we’ve made vaccines mandatory for school entry,” Kirkland says, “we also need a compensation system if something goes wrong.”
Law and Order
In the 1980s, damages were awarded to families who filed civil suits for injuries caused by the diphtheria, pertussis, and tetanus (DPT) vaccine. Drug companies threatened to stop making vaccines—and some of them did. Vaccine prices spiked, creating a shortage, and health officials worried that epidemic diseases might return. In response, Congress created the Office of Special Masters of the U.S. Court of Federal Claims, known informally as “the vaccine court.”
The scene at a polio clinic sponsored by the Urban League of Greater Muskegon in 1959. The polio vaccine was created in 1952 by Dr. Jonas Salk. The vaccine was declared safe and effective in 1955.
Photo courtesy of Bentley Historical Library
The vaccine court is the only court that hears vaccine injury claims. Petitioners file claims against the Secretary of Health and Human Services rather than drug companies. Awards come from a fund created by a 75-cent surcharge that’s added to every vaccine dose. Cases are decided by appointed judges known as special masters, and the government’s interests are defended by lawyers from the Justice Department.
The vaccine court was designed to compensate injuries quickly, generously, and with scientific credibility, says Kirkland, but it can’t realistically do all of that. For efficiency, the court uses a vaccine injury table, which lists conditions known to be linked to vaccines.
“If you’re vaccinated and develop a condition on the table within a certain period of time, the court presumes the vaccine caused the injury and awards your claim,” Kirkland says, whose book Vaccine Trials: The Law and Politics of Vaccine Injury will be published in 2016. The trouble is, the table doesn’t have many injuries on it.
Recognized vaccine injuries include things like chronic arthritis and such very rare conditions as thrombocytopenic purpura, a disorder that can cause bruising and excessive bleeding. Other injuries may eventually be added to the vaccine court’s injury table, but studies need to produce the data first.
Weighing the benefits of ridding society of certain diseases against rare but inevitable injuries caused by vaccines is a tricky calculus, says Kirkland. The court has tried to democratize the process. Everyone—parents, activists, doctors, public health researchers, and lawyers—gets some opportunity to say what counts as a vaccine injury. But it’s the court that decides.
Of course, for people who have already decided against vaccination due to suspicions about government, science, or Big Pharma, a federal court decision is unlikely to be taken as the final word. To this mix, says Kirkland, add mothers who were told every bite they take in pregnancy matters, who feel responsible for managing the health of their families, and “it’s easy to feel like you’re some sort of sap if you just follow the guidelines and don’t individualize your children’s vaccine schedule.”
Kirkland admits it can be hard to get good evidence about whether a vaccine really caused a person’s injury, and it’s the court’s job to balance personal freedoms and public good. “Our society is free of some horrible diseases because we invested in developing vaccines and we mandate their use. This immunization social order inevitably creates difficult questions, and the court’s efforts to help society navigate them with facts and science have been all to the good.”
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