Academic journal article William and Mary Law Review

A One Shot Deal: The National Childhood Vaccine Injury Act

Academic journal article William and Mary Law Review

A One Shot Deal: The National Childhood Vaccine Injury Act

Article excerpt

Andrew Clements is six years old.(1) Like most other children his age, Andrew enjoys stuffed animals and the characters from Walt Disney's 101 Dalmatians.(2) Plastic decals of black and white spotted dogs adorn his bedroom walls, and furry, stuffed creatures cover his furniture.(3) Any six-year-old would approve.

Yet Andrew's parents realize that their son has little more in common with other children his age. Andrew is not enrolled in elementary school.(4) He cannot walk.(5) He cannot talk.(6) He cannot sit up without assistance.(7) He cannot feed himself, but must be fed through a feeding tube.(8) Although he recognizes their voices, Andrew cannot tell his parents what he thinks or how he feels.(9)

Andrew was not born with disabilities.(10) His difficulties began August 6, 1992, the day his mother took him for his six-month well-baby visit and Andrew received his third DPT vaccination.(11) Later that evening, Andrew suffered his first seizure and was rushed to the hospital.(12) By the age of three and a half, he had returned to the emergency room more than seventy times and experienced equally as many additional seizures.(13) Between each seizure, Andrew appeared a happy and healthy child.(14)

In the fall of 1995, the Clements's family life changed permanently. Andrew suffered another seizure, which lasted more than four hours, and developed an infection that caused his body temperature to peak at 108 degrees.(15) Although he recovered, Andrew never returned to being the relatively normal three-year-old he had been between each previous seizure episode.(16)

In July of 1995, Andrew Clements's parents filed a petition for compensation under the National Childhood Vaccine Injury Act (the Act).(17) Enacted in 1986, the Act created a no-fault compensation system through which parents could seek monetary relief for vaccine-related injuries suffered by their children.(18) Because the Clements family blamed the DPT shot for their son's injuries, they alleged that the vaccination was the cause-in-fact of Andrew's encephalopathy and seizure disorder.(19) Despite the Clements's presentation of favorable evidence including testimony from a medical expert, the special master assigned to their petition denied the family's claim.(20)

This Note addresses both the motivation that prompted Congress's passage of the National Childhood Vaccine Injury Act and its implementation since the Act's passage in 1986. Ultimately, this Note suggests that the Act, as enforced, has not met Congress's good intentions.

Part I discusses the purpose of the National Childhood Vaccine Injury Act, with particular regard to the history of immunizations in the United States and the potential shortage in availability of specific vaccines in the mid-1980s. Part II addresses the Act as a no-fault alternative to compensation, including the Act's pleading requirements and the role of the special master in determining whether recovery is appropriate. Part III focuses on the standard of proof required of petitioners in order to recover, with further emphasis on the special masters' role in adjudication of claims. Part IV concludes that Congress's initial goals in passing the National Childhood Vaccine Injury Act have not been met with respect to many petitioners. Although Congress has achieved its goal of ensuring a sufficient supply of vaccines, Part IV emphasizes that this victory has been realized only at the expense of efficiency and fairness. Although the no-fault compensation scheme has insulated the pharmaceutical industry from liability, it has not been an equal cure for individuals injured by vaccinations covered by the Act.

HISTORY OF VACCINES

The authority of states to require their citizens to be immunized against certain diseases and illnesses is well-settled.(21) All fifty states and the District of Columbia have immunization requirements for children that must be met before they may attend public school. …

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