What Can I Expect When You Take My Case? Phase 3-Drafting Your Petition.
There are several phases in a vaccine case, and we will go over each phase in a single post.
After a complete review of your medical records from three years prior to vaccination to the present, and the finalization of your affidavit based on that review it’s now time to draft your Petition.
Like civil litigation, your Petition is a document that gets filed with the Vaccine Court that sets out relevant facts. Rule 2(c)(1) of the Vaccine Rules of the Court of Federal Claims sets out the required Contents of the a Petition. They are (A) a short and plain statement of the grounds for an award of compensation, including: (i) the name of the individual to whom the vaccine was administered; (ii) the date and place of the vaccination; (iii) a specific description of the injury alleged; and (iv) whether the injury claimed is contained within the Vaccine Injury Table; and (B) a specific demand for relief to which the petitioner asserts entitlement or a statement that such demand will be deferred pursuant to 42 U.S.C. § 300aa-11(e).
The relevant facts or grounds for an award consist of references to medical records, typically in chronological order stating your relevant health history prior to vaccination, the vaccination record, and subsequent treatment in approximate chronological order. In addition, affidavit testimony from you will be included in the Petition. A typical petition will also include required language regarding whether there is Medicaid involvement in the case and whether there were lost wages. Because vaccine cases are bifurcated, meaning we first determine entitlement and then determine damages, we always include language deferring the demand (as allowed above) until a determination of entitlement. The Petition also includes language demonstrating Petitioner (client) has standing to file and has met all of the jurisdictional requirements, e.g. that the injury has lasted for at least six months, or there was inpatient hospitalization and surgical intervention. Finally, the Petition must attest that neither the petitioner nor any other party has ever received compensation in the form of an award or settlement for petitioner’s vaccine-related injury (excluding Worker’s Compensation and Social Security Disability), and that neither the petitioner nor any other party has ever filed any action for petitioner’s vaccine-related injury (excluding Worker’s Compensation and Social Security Disability). [NOTE: Because Petitioner’s attorney’s fees are paid by the NVICP and not the Petitioner, there is referencing attorney’s fees as well.] In addition to the content required by the Act and the Rules, Petitions also include language about how the vaccine injury has affected your life. A typical Petition ranges from 4-8 pages in length depending on the complexity of Petitioner’s medical condition.
When we have completed a draft of the Petition it will be sent to you for your review and final comments. When the Petition is finalized, and signed by the Attorney, we file the Petition electronically on the HHS website. [NOTE: Our firm typically files the complete medical records upon issuance of the Court’s Initial Pre-Assignment Review Order, that will be discussed in the next post.]
Once the Petition is filed, the next phase is the Pre-Assignment Review or PAR Process.
For more information contact The Law Office of Renée J. Gentry, Esq.