Girl gets $4.7M for vaccine injuries

Friday, August 16, 2002


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