Monday, September 13, 2010

Vaccine Court Confusion

The Hannah Poling news reporting is analyzed at Left Brain / Right Brain. Specifically, LBRB looks at the coverage from CBS reporter Sharyl Attkisson:

Sharyl Attkisson blogs the Hannah Poling settlement.

The reporting is misleading, but the issue is so complex I cannot fault CBS or the reporter entirely. The 2007 decision to settle the claim by the Poling family that vaccinations harmed their daughter was a reasonable choice -- the case would have been complex and likely to end in the same confusion regardless of any award.

The Poling case was filed in 2002 and the decision to settle without a ruling was made in 2007. The reasons for settling the case were logical: Hannah Poling's underlying condition was exacerbated by a fever. Though we can never know if a vaccine was or was not the cause of the fever, the "tables" used in such cases assume a potential cause within certain timespans. In other words, if you get ill within X days of a vaccine, you do not need to prove the vaccine caused the illness.

The fever caused swelling, encephalopathy, and exacerbated a mitochondrial condition.

There is no way, none, to know if the fever was or was not caused by a vaccine, but the federal guidelines suggest settlement in such "table illness" cases. This is one of the rare instances in our legal system in which you assume causation and responsibility without reasonable certainty. Why? Because some people do have reactions to vaccines.

The vaccine injury list is online. See the National Vaccine Injury Compensation Program: NVICP Table of injuries/conditions that are presumed to be caused by vaccines.

There was no "winning" in the Poling case, it was a settlement. That settlement is paid indirectly through the NVICP, so the choice to settle was made by the HRSA / HHS of the United States, not the vaccine manufacturers. It was a choice based on the notion that, though doctors violated protocols, it would be nearly impossible to prove or disprove causation. Often, very often, settling a case is easier.

However, NVICP is a special creature in our legal system. It begins with the presumption of cause which is not the norm in most U.S. legal structures. You begin with the vaccine as "cause" by default. This leaves the NVICP, as directed by the law creating the "vaccine court," with the mandate to settle most cases that fit within the table for compensation.

There is no way, none, to prove or not, that a fever was caused by the vaccine. However, the legal mandate of the NVICP is to assume the vaccine contributed and settle the case.

The NVICP settlements are all called "concessions." The specific terms used are: conceded settlements, litigative risk conceded settlements, and entitlement decisions.

The terms are defined and used according to the 2008 meeting of the NVICP members:

"The majority of cases, however, are to be compensated by settlement. By settlement, the NVICP board means litigative risk concession settlements. That is where the petitioners maintain that they are entitled to compensation and the Government maintains that they are not. However, the parties agree that the case should be settled without resorting to a decision through litigation."

It is a legal term. Once again, we see how language specific to a field causes confusion.

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