"But military personnel could not sue the government for vaccine-related
injuries, even if they believed that the injuries resulted from negligence
by members of the armed forces or civilian federal employees. The Supreme
Court ruled in 1950 that "the government is not liable under the Federal
Tort Claims Act for injuries to servicemen" arising from their military
service, and the court has repeatedly reaffirmed this principle, known as
the Feres doctrine after the case that established it."

December 14, 2002
Health: For Victims of Vaccine, Winning Case Will Be Hard
NYT
By ROBERT PEAR
People injured by the smallpox vaccine will be able to sue only one
defendant, the federal government.

Full Story: http://www.nytimes.com/2002/12/14/health/14LIAB.html?tntemail1

LEGAL RISKS
For Victims of Vaccine, Winning Case Will Be Hard
By ROBERT PEAR


ASHINGTON, Dec. 13 — People injured by the smallpox vaccine will be able to
sue only one defendant, the federal government, and experts who have
studied the relevant laws say it will be difficult for anyone to win
compensation for injuries or deaths caused by the vaccine.

In the Homeland Security Act, signed by President Bush on Nov. 25, Congress
shielded doctors and vaccine manufacturers from liability for injuries
suffered by people who take the vaccine. If the federal government
authorizes use of the vaccine, the law says, anyone giving or producing it
will be "deemed to be an employee of the Public Health Service," and the
government will become the only defendant.

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An injured person can pursue compensation under the Federal Tort Claims
Act, but lawyers said it would be difficult to win money under that 1946 law.

"The government can probably escape liability for almost all injuries,"
says an analysis by Prof. Edward P. Richards and Dr. Katharine C. Rathbun
of Louisiana State University.

Under the tort claims act, they said, plaintiffs would have to show that
the government or people acting on its behalf were negligent in
administering the vaccine.

"It would be very hard to recover from the government for risks that the
government knew it was exposing people to," said Professor Richards, who is
director of the program in law, medicine and public health at Louisiana
State. "The government is not liable if it makes a policy choice to expose
citizens to risks. It might be a bad policy choice, but it's not negligence."

Dr. Rathbun added, "If everything is done perfectly, without any
negligence, some percentage of people given the vaccine will be injured by
it — it's a dangerous vaccine — and they will not be compensated under the
law."

Health officials estimate that 14 to 52 people of every million vaccinated
may face life-threatening injuries, and that one or two will die. But, they
say, the risk of serious injuries is much higher among people whose
immunity has been suppressed by AIDS, cancer chemotherapy or other
illnesses and treatments.

Under the tort claims act, federal employees must observe federal laws and
regulations, but generally have no liability for policy decisions or
actions performed in an exercise of official discretion.

The litigation process for victims of the smallpox vaccine will differ
significantly from that for people injured by childhood vaccines.

In 1986, Congress created a no-fault system to compensate people injured by
childhood vaccines. The government reviews and pays claims. The claims are
paid from a federal trust fund financed by an excise tax included in the
price of each dose of the recommended vaccines. To obtain compensation, a
person must show the existence of a vaccine-related injury, but does not
have to show negligence.

When the House considered the Homeland Security bill last month,
Representative Henry A. Waxman, Democrat of California, said it "severely
restricts the ability of persons killed or injured by the smallpox vaccine
to receive any form of compensation." In short, he asserted, "if you are
hurt, you are out of luck," and "the vaccine manufacturer, for all
practical purposes, is going to be immune from liability."

The American Medical Association said today that it supported President
Bush's plan to offer smallpox vaccinations to certain health care workers
and emergency personnel. But it said that the liability protections, which
take effect on Jan. 24, should be in place before doctors start giving the
vaccine.

The Service Employees International Union, which represents many health
care workers, said the government should establish a "simple and fair
compensation system" for people injured by the vaccine. Such a system, it
said, should make up income lost by people who become too sick to work
after taking the vaccine.

Jim Turner, a spokesman for the Defense Department, said that if
active-duty military personnel were injured by the vaccine, they would
receive health care through the department's worldwide medical system. If
disabled, he said, they could obtain disability benefits and health care
from the government.

But military personnel could not sue the government for vaccine-related
injuries, even if they believed that the injuries resulted from negligence
by members of the armed forces or civilian federal employees. The Supreme
Court ruled in 1950 that "the government is not liable under the Federal
Tort Claims Act for injuries to servicemen" arising from their military
service, and the court has repeatedly reaffirmed this principle, known as
the Feres doctrine after the case that established it.



--------------------------------------------------------
Sheri Nakken, R.N., MA
Vaccination Information & Choice Network, Nevada City CA & Wales UK
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