No medical intervention is 100% safe—and that includes vaccines. While serious side effects are incredibly rare, some people do suffer injuries as a result of vaccinations. 

The government developed a special compensation program for anyone injured by vaccines, the Vaccine Injury Compensation Program (VICP), because getting vaccinated helps protect not just an individual but society as a whole, and the program provides an easier path to compensation, and to protect the vaccine supply.

But the program needs fixing, and previous attempts to put in place common-sense, simple fixes died on the vine because of lack of congressional attention. Now we have another chance, and we should not drop the ball again. 

The original intent of the VICP

The VICP was created through an Act of Congress in 1986. The program was a compromise stemming from litigation around the whole-cell pertussis vaccine in the 1980s, a vaccine that is no longer in use. The compromise addressed two separate problems. 

First, vaccine manufacturers were leaving the market owing to the increase in litigation. Congress was concerned that people in the United States would no longer have access vaccines, leaving children at risk of dangerous diseases. Second, although some people won their lawsuits against the manufacturers, most lost. Claimants were frustrated with the challenges posed by the tort system, and wanted an easier mechanism for compensation.

The resulting program provided manufacturers and doctors with limited liability protections, in exchange for an easier compensation mechanism. In a court proceeding, claimants would have to show not just that vaccines caused their harm, but that someone was at fault: the vaccine was a defective product, the manufacturer was negligent, or a doctor committed malpractice. In the program, claimants just need to show a vaccine caused their harm and what the damage was (not always easy, but easier), and lawyer and expert fees are covered (even if the case loses)—so bringing claims is easier. 

A necessary fix to an important program

But, like the vaccines themselves, VICP is an imperfect system. Over the years, many Congressional Members have introduced bills to solve the issues, but all have failed to move forward. Now, there is a bill that could truly improve the program. 

The bill, brought by a bipartisan team of Lloyds—Representative Lloyd Doggett (D-TX) and Representative Lloyd Smucker (R-PA)—does several important things. It increases the number of Special Masters, which will allow cases to move faster. Right now, the program has a backlog, and it badly needs more special masters who can hear cases (and more staff), so petitioners can get their case resolved. 

The bill also raises caps for compensation for death as well as pain and suffering. Those were set at $250,000 in 1986 and not raised since—and the amounts should be raised. The bill also increases the statute of limitations on injuries to five years, instead of the current three years, which will give people more time to bring cases. 

Over the years, many Congressional Members have introduced bills to solve the issues, but all have failed to move forward. Now, there is a bill that could truly improve the program.

The proposed bill moves those claiming harms from COVID-19 vaccines from the much less generous Countermeasures Injury Compensation Program to VICP—and about time, too. I have said before and will say again that we are not treating people claiming harms from COVID-19 vaccines properly. If they can prove their case, they deserve access to fast, generous compensation. 

The bill would also make it easier to add vaccines to the program, preparing the ground for future vaccines, and it increase the excise tax vaccine manufacturers pay to cover injuries. 

This bill will help claimants and shore up some of the program’s weaknesses. It’s a necessary fix to an important program. It will protect both our access to vaccines and access to compensation for the rare people harmed by a vaccine. 

Win-win. Let’s get this done.

Dorit Reissis a professor of law and the James Edgar Hervey Chair in Litigation in UC Law San Francisco. She writes about vaccines law and policy. 

The opinions voiced in CIDRAP commentaries are the authors’ own and do not necessarily represent the official position of CIDRAP.