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Client FAQs-Who Am I Suing?

We’re starting a new series called Client Frequently Asked Questions or FAQs where we answer questions that we get all the time. Clients are frequently concerned that their vaccine injury claim may hurt their relationship with their doctor or wonder how they go up against Big Pharma. So, their question is “Who am I suing?” The answer is: no one. A vaccine injury claim is not a lawsuit. It’s a no-fault claim against a government fund. Neither your doctor nor the manufacturer of the vaccine is being sued. Instead, you’re filing a claim against the US Secretary of Health and Human Services (HHS) in the National Vaccine Injury Compensation Program (NVICP).

Because Congress set up the NVICP to be a tort reform compensation program, they designated the US Secretary of HHS to take the place of both vaccine manufacturers and vaccine administrators (medical providers that give the vaccines), meaning all claims are filed against the Secretary. In addition, Congress made the NVICP a “no-fault” compensation Program. That means we’re not saying anyone did anything wrong. No one is at fault in the NVICP. This is the principal difference between a lawsuit and a vaccine injury claim. We have a lower burden of proof than in civil litigation. In addition, instead of filing in your home state, your claim must be filed in the US Court of Federal Claims, Office of Special Masters in Washington DC. That does not mean however, that these claims are easy. Far from it. Today, vaccine injury cases frequently look like full-blown civil litigation with multiple experts – it’s just that we’re focused solely on medical causation and not fault.

You’re not suing anyone. However, in most other ways your vaccine injury claim will look and feel like civil litigation. You’ll have a federal special master in the place of a judge. [There are no juries in vaccine court – just the special masters.]. There will be an opposing counsel. The US Department of Justice (DOJ) represents the Secretary of HHS. We will submit a claim called a Petition (you are the petitioner). HHS will respond (they’re the respondent). We file substantial evidence, including complete medical records, affidavits, witness statements, expert reports, and medical literature in support of those reports. The parties may go through multiple rounds of expert reports. Once the evidence is in, the special master will either conduct a one- or two-day trial or they will ask the parties to brief the issues (make written arguments) instead of going into court. Eventually, they will issue their decision. If they find you’re entitled to compensation, that is, that the vaccine injured you, you go into damages. The NVICP is a bifurcated program, meaning they determine causation first and then damages. It’s not done at the same time. Despite this, your lawyer may ask you to start documenting your damages from the beginning to make it easier once you get into the damages phase.

Because of this labor-intensive and frequently long process, for most clients, it still feels like a lawsuit with all the stress associated with lawsuits, and that’s understandable. Your attorney will walk you through all aspects of the case and answer questions throughout the process. Despite these similarities, there are many substantive and technical differences between civil litigation and the NVICP. Make sure you have an attorney experienced in the NVICP.

For more information contact The Law Office of Renée J. Gentry, Esq.

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