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Hot Button Issues – Medical Malpractice and Vaccines

The recent measles outbreak that spread nationwide after a contagious child went to Disneyland has highlighted the importance of vaccines. The use of these life-saving preventative measures have saved countless lives over the past few decades in addition to preventing life-long side effects of what used to be common childhood diseases. While it is extremely important for most children to receive their vaccines, there are rarely those who cannot receive them due to a medical condition. There is also an extremely small population in the United States that objects to vaccination based on their religious beliefs.

This makes it even more important for the children who can get their shots to get their shots in order to protect those who cannot. All of this being said, occasionally medical malpractice can happen where vaccines are involved. Healthcare providers errors are a possibility. Additionally, a small number of children are injured by reactions to vaccinations. It is important for parents to understand what their rights are in the extremely unlikely but possible chance of this happening to their child.

The Vaccine Court

The United States uses what is often referred to as the Vaccine Court as a part of the resolution process when a child is injured by a vaccination. Its official name is the Office of Special Masters of the U.S. Court of Federal Claims. This system has existed since 1988 because of the National Childhood Vaccine Injury Act which became law in 1986.

It is a common misconception that, were a vaccination to injure a child who received it, the child and his or her parents would have no way of recovering. While claims against vaccine manufacturers normally cannot be filed in state or federal court, these claims can be filed in the vaccine court. This system is a no-fault system, much like various state’s workers’ compensation systems. The compensation through the vaccine court, which is funded by an excise tax on vaccines, can include:

***Medical and legal expenses ***Loss of future earning capacity ***Up to $250,000 for pain and suffering ***A Death benefit of up to $250,000.

Interestingly, at least some courts have been willing to consider lawsuits directed at vaccine ingredients, like preservatives within vaccines, rather than requiring the case to go through the vaccine court. These lawsuits would not be against the vaccine manufacturers, but instead would be against the manufacturers of the components of the vaccines.

Healthcare Provider Error is Still Medical Malpractice

While lawsuits against vaccine manufacturers usually must go through the vaccine court, this does not give healthcare providers a license to commit malpractice. If a child patient were injured by a doctor administering an incorrect dosage or incorrect vaccine, for example, that would still be medical malpractice and the state’s normal medical malpractice laws would apply. Similarly, if a healthcare provider’s actions caused a child patient to contract a dangerous infection, regular medical malpractice laws would apply.

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