Girl gets
$4.7M for vaccine injuries
Friday, August 16, 2002
By LINDY WASHBURN
Staff Writer
A New Jersey girl whose mental development
stopped at 2 months old after a routine immunization has received a $4.7 million
settlement from a national trust fund.
More than $3 million of the award will go to an
annuity that will pay for the child's care as long as she lives. Its payout could exceed
$61 million if she lives to 71, said Mindy Michaels Roth, the Glen Rock attorney who
brought the case in the U.S. Court of Federal Claims.
The payment to the girl, now 9 years old but with
the mental ability of a 2-month-old, comes from the National Vaccine Injury Compensation
Program, funded by a 75-cent tax on each vaccination. Congress created the fund in 1986,
at a time when a growing number of lawsuits against vaccine manufacturers was driving them
out of the marketplace, and more parents were choosing not to immunize their children
because they feared harmful side effects.
"It removes a tremendous weight as to how we'll
care for [our daughter] financially,'' said the girl's father, who lives in Central Jersey
and asked that the family not be identified. "As finite human beings, we die. Who's
going to care for her? This eliminates that burden'' because her eventual care in a
nursing home is provided for, he said.
Congress established the program to stabilize the
supply of vaccines and free money for research on safer alternatives.
The program also created a less expensive method to
resolve claims outside the normal court system.
Since its inception, the fund has settled more than
5,500 claims, and awarded nearly $1.4 billion. Awards range up to $9.1 million. This
year's average has been $800,000.
The fund provides compensation for injuries from all
vaccines mandated by the federal government: diphtheria, tetanus, and pertussis (DTP);
measles, mumps, and rubella (MMR); polio, hepatitis B, chickenpox, and H. influenza Type
B.
This month, the pneumococcal vaccine was added to
the list, and it became easier for parents whose babies suffered a bowel blockage
following the rotavirus vaccine to secure compensation. Injuries from smallpox and anthrax
vaccines are not covered by the fund.
Legislation is also pending, Roth said, to consider
autism as a possible vaccine-related injury.
Some people believe the rising incidence of autism
is partly attributable to the growing number of vaccines administered before a child's
immune system is mature. In particular, they cite the mercury used as a component in some
vaccines as a possible toxin.
However, a recent Institute of Medicine report
concluded there was insufficient evidence to accept or reject a link between thimerosal, a
mercury component in some vaccines, and autism and other developmental and neurological
disorders.
Of the 4 million children each year who receive
multiple vaccines, about 10,000 adverse reactions are reported to the federal Centers for
Disease Control and Prevention.
Most of those reactions are minor, but about 15
percent report incidents of hospitalization, disability, life-threatening illnesses, or
death. Those reports do not prove the vaccine caused the problem, however.
The Central Jersey girl, the youngest of four
children, was a bright, healthy 2-month-old when she visited a pediatrician in September
1993, her mother said. While there, she was given a vaccination for diphtheria, tetanus,
and pertussis (DTP).
Eleven hours later, her mother noticed odd eye
movements as she changed the baby's diaper. She put the baby to bed and went to sleep, she
said. When she awoke the next morning, she realized her daughter hadn't cried for her 3
a.m. feeding.
She found the baby "red in the face, foamy at
the mouth, and having difficulty breathing,'' the mother said. The baby didn't have a
fever, however, and the pediatrician advised her to keep an eye on the situation.
The baby was very lethargic, her parents said.
Later, as her father held her in his arms, she started to shake - the first of many
seizures. As the seizures increased, she was hospitalized.
"It was very frightening,'' the girl's mother
said.
At first, neither the family nor the doctors
connected her problems with the vaccination. "It's a highly emotional state,'' the
father said. "It takes time to wrestle with this. ... There are all sorts of
different distractions.''
At first, they didn't know her condition would be
permanent. Health-care professionals tried to give them hope.
Only through careful questioning did the parents
learn the likely long-term prognosis for their daughter. They hoped that her condition
would not be permanent, but they realized they had to plan as if it were.
When a pediatric neurologist told them he believed
the girl's problems were linked to the vaccine, he suggested they might seek compensation
from the fund. That was when they learned the urgency of filing such a claim.
The fund operates with strict time limits, and the
family said it spoke publicly to help make others aware of the potential for compensation
and its timetables.
A child injured by a vaccine must file a claim
within three years after the first symptoms appear.
The family of a child who dies must file within two
years of the death.
No lawsuits concerning vaccine injuries can be filed
in a civil court, the law says, until after a claim has been filed with the vaccine
compensation program and the litigant has decided to reject its award.
As a result, the number of lawsuits filed against
vaccine manufacturers has plunged since the fund's inception: four suits against DTP
makers in 1997, compared with 255 in 1985.
In New Jersey, four attorneys are listed by the
Court of Federal Claims for filing vaccine-related claims with the program. Roth and her
partner, Drew Britcher of Britcher, Leone & Roth, are two of them.
"People need to know to get to the fund,'' Roth
said. "They have this child. They have huge medical bills.
They'll be capped-out on their insurance. There is a
place to go. If you don't go there, you aren't going to go anywhere. You will be dismissed
from state court, and have no recourse.''
The program, which operates with a special master,
pays attorney fees regardless of whether the claim succeeds or fails. The fees are based
on an hourly rate of $175, plus expenses - not a percentage of the settlement, as in
malpractice cases. Awards for pain and suffering are capped at $250,000.
The child is the sole beneficiary of the award, not
the family. If the child dies, the annuity established as part of the award reverts to the
compensation fund.
Nine years after the Central New Jersey girl's DTP
shot, she continues to suffer seizures and to be affected by swelling in the brain.
"In physical development, she's a 9-year-old
girl,'' said her father, chuckling that she may turn out to be the tallest member of the
family. Mentally, or cognitively, however, "her development was arrested at two
months.''
She cannot control her own movements, and is blind.
The family cares for her at home.
Among their first purchases from the settlement is a
specially equipped van, with a ramp and space for her wheelchair.
The girl weighs 47 pounds; lifting her in and out of
the car has become increasingly difficult.
The van hasn't arrived yet, her mother said,
"but we feel better already, just having ordered it.''
Lindy Washburn's e-mail address is washburn@northjersey.com