photo of a woman receiving a vaccine

The Vaccine Injury Compensation Program (VICP) provides compensation for people who have been injured by certain vaccines listed on the Vaccine Injury Table.

In order to be eligible for compensation, you must file your petition within 3 years of the onset of your vaccine injury symptoms. This is called the statute of limitations.

What other criteria do you have to meet to qualify for compensation?

There are other requirements you must meet before you are eligible for compensation from a vaccine reaction. Even if you suffered a vaccine injury and are diagnosed correctly, you are not entitled to compensation if you do not meet at least ONE of the following criteria:

  1. The injury must last for a period of at least six (6) months, OR
  2. The injury results in an in-patient hospitalization AND surgical intervention.

The first requirement was added to make sure that only serious injuries are compensated. If you ask me, the six-month requirement seems arbitrary and unfairly bars otherwise meritorious claims.

In 2000, the National Childhood Vaccine Injury Act was amended to include the second provision that requires inpatient hospitalization AND surgery before you are entitled to compensation.

What is “surgical intervention”?

The Act does not define “surgical intervention,” and instead left it to the courts to determine what constitutes a surgical procedure for purposes of the Act. Originally, it was thought that the surgical intervention provision was added to allow for petitioners who suffered intussusception after a rotavirus vaccine to apply for compensation.

Intussusception often requires surgery but does not typically last for six months. However, as more vaccine injury petitions were filed, the courts finally decided on a definition.

The courts have interpreted “surgical intervention” to mean “the treatment of a disease, injury, and deformity with instruments or by the hands of a surgeon to improve health or alter the course of a disease.”

This definition has led to some confusion for petitioners and attorneys. For example, a lumbar puncture can be surgical in nature. But if it is used as a diagnostic tool and is not necessary for treatment, it would not meet the court’s definition.

Likewise, intravenous treatments like IVIG are clearly necessary for treating a patient but are not surgical in nature. Other procedures like steroid treatments and blood transfusions also don’t meet the courts’ criteria.

However, whether a procedure constitutes a “surgical intervention” is determined on a case-by-case basis. The following factors can help determine whether treatment is “surgical intervention”:

  • Anesthesia
  • The type of physician who performs the procedure
  • Pre-operative testing and procedures
  • The patient’s condition following the procedure

The court will closely review your medical records to make that determination.

In this article, we’ve discussed the initial requirements and limitations for people filing petitions with the VICP. Whether you meet the requirements and are compensated depends heavily on your vaccine injury and the evidence filed in support of the petition.

Injured by a Vaccine? Contact our lawyers today.

If you believe you have been injured by a vaccine, you may be entitled to compensation. Our vaccine injury attorneys are ready to help.

Feel free to contact our office for a free case review at (312) 578-9501. You can also fill out the form at the bottom of the page.

Sources:

Spooner v. Sec’y of Health and Human Servs., 2014 WL 504728, at *10-13.

Stavridis v. Sec’y of Health and Human Servs., 2009 WL 3837479.

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