For nearly 40 years, the Vaccine Injury Compensation Program (VICP) has done exactly what it was created to do: deliver justice to victims while protecting against runaway litigation. It has awarded more than $5 billion to injured patients through a streamlined, solvent, and sustainable claims system.
But Department of Health and Human Services (HHS) Secretary Robert F. Kennedy Jr. and his allies are maneuvering to change the program in a way that ensures its collapse, ending the streamlined pathway to justice that genuine vaccine victims have trusted for four decades.
Secretary Kennedy has made waves by unwisely suggesting that autism cases be added to VICP’s vaccine injury table, which refers to health conditions found to be caused by vaccines and eligible for VICP compensation. This move could transform VICP from a well-tailored compensation mechanism for direct injuries into a magnet for flimsy claims based on a condition that the scientific community has repeatedly and conclusively found is not caused by vaccines.
Legal precedent has kept pace with these strong scientific findings. In the 2000s, the U.S. Court of Federal Claims examined more than 5,000 autism-related petitions and reached an unambiguous conclusion: the evidence simply isn’t there.
But as Secretary Kennedy has shown throughout his tenure at HHS, the research isn’t relevant; it’s all about pushing an ideological agenda, no matter who suffers. He has actively moved to undermine patient choice, stacked HHS and relevant vaccine and medical boards with anti-vaccine zealots, and promoted widely debunked theories connecting vaccines to autism.
And as University of Pennsylvania legal scholar Peter Grossi wrote recently in an article appearing in the Penn Law Public Law Research Series, the costs of this ideological crusade are much deeper than half-baked theories and patient confusion.
In previous work, Grossi had examined what would happen to VICP if autism were added to the injury table. Under Grossi’s analysis, even if VICP covered only the most severe cases of autism, the economic burden could increase to more than $30 billion per year -- 100 times the program’s current yearly revenue.
But that would likely only be the tip of the iceberg. Because there is a statutory eight-year “lookback” period, the docket could be swamped by prior autism diagnoses and costs could easily balloon to $250 billion. That’s more than 10 percent of the total annual budget deficit.
In his most recent work, Grossi reasonably calls for a “stress-test of some proposed Injury Table expansion” to see how injury table changes would impact the program. His analysis points towards a near-term collapse of the program. That would be great news for trial lawyers, who Secretary Kennedy is still financially tied to through close family members.
Under VICP, attorneys representing claimants receive a flat hourly fee, separate from any award to claimants. But in civil court, trial lawyers commonly receive 33 percent of any award, before a claimant receives a penny. That’s why the trial bar has long seen certain vaccines as a new, untapped avenue for litigation. Adding autism to VICP’s vaccine injury table would represent one of the biggest giveaways to trial lawyers in generations. And Secretary Kennedy could (at least attempt to) do it all without Congress changing a single law.
The Taxpayers Protection Alliance has launched a dedicated resource to educate Americans about VICP’s role in protecting patients and fostering innovation, and how this proven program is under attack. Hopefully, principled conservatives in the White House and Congress see what’s going on at HHS before it’s too late.
Ross Marchand is the executive director of the Taxpayers Protection Alliance.
