US Health Secretary Robert F. Kennedy Jr.’s vaccine policies and commentary largely appear to contradict his pledge to revamp a decades-old program that pays people injured from immunization, legal experts say.
Kennedy has described the law creating the Department of Health and Human Services’ Vaccine Injury Compensation Program as a problematic protection for drug companies against litigation “no matter how reckless” they are or “toxic” their product. He resumed his criticisms of the program Monday on X, posting that the program “has devolved into a morass of inefficiency, favoritism, and outright corruption as government lawyers and the Special Masters who serve as Vaccine Court judges prioritize the solvency of the HHS Trust Fund, over their duty to compensate victims.”
“The structure itself hobbles claimants. The defendant is HHS, not the vaccine makers; and claimants are therefore facing the monumental power and bottomless pockets of the U.S. government represented by the Department of Justice,” Kennedy wrote. “The VICP is broken, and I intend to fix it. I will not allow the VICP to continue to ignore its mandate and fail its mission of quickly and fairly compensating vaccine-injured individuals.”
The VICP has taken in over 28,000 petitions since 1988, around 25,000 of which have been adjudicated, according to the HHS’ Health Resources and Services Administration. About $5.4 billion has been paid out to the injured through the program since its inception.
The HHS secretary says he’s brought in an individual to clean up the VICP, and that the government is considering how to expand the program to cover injuries for Covid-19 vaccines.
But Kennedy also has taken actions seemingly rooted in a skepticism of vaccine manufacturers and their products. That, observers say, goes against the VICP’s goal of protecting drugmakers from litigation to ensure Americans get vaccinated in order to avoid preventable diseases.
Since taking over the HHS, Kennedy has dismissed 17 vaccine policy advisers to the Centers for Disease Control and Prevention, cut a $766 million contract with
Much of what Kennedy has done has “turned a ratchet against the availability of vaccines,” said Brian Dean Abramson, a vaccine law professor at the Florida International University College of Law. “If you look at the record of things that he said, they have a foregone conclusion attached.”
‘Uphill Battle’
Kennedy on Monday said the VICP’s special masters often “display an extreme bias” favoring the government over petitioners.”
“The VICP routinely dismisses meritorious cases outright or drags them out for years. Instead of ‘quickly and fairly’ awarding compensation,” Kennedy wrote.
The HHS secretary “has always had tremendous discretion” with the program, said Renée Gentry, director of the Vaccine Injury Litigation Clinic at George Washington University Law School.
Among the things Kennedy could do is add or remove recommended vaccines, Abramson said. Kennedy could also use “the soft power of HHS” to push lawmakers to pass legislation to make it easier to add Covid-19 vaccines to the program.
Kennedy’s pledge to reform the injury compensation program coincides with renewed interest on Capitol Hill. The program has faced greater scrutiny following the Covid-19 pandemic.
Kennedy would need Congress to make a number of VICP changes, and lawmakers are open to reforms.
In July, the Senate Permanent Subcommittee on Investigations held a hearing on vaccine injuries, where Chairman
Similarly, Rep
“Secretary Kennedy’s actions are one step in the right direction to make sure that these vaccine-injured Americans receive their day in court,” Roy said in a statement to Bloomberg Law.
Lawyers who practice in the VICP say that pushing the injured straight into the civil litigation would be a huge mistake, pitting claimants who may struggle to afford a lawyer against multibillion-dollar drug companies and requiring they demonstrate difficult-to-prove injuries.
“We do have examples of vaccine-injured petitioners bringing civil claims, and it’s been a real uphill battle without a lot of noted success,” said Christina Ciampolillo, a junior partner at Conway Homer PC who previously served as president of the Vaccine Injured Petitioners Bar Association.
The VICP was “enacted as a form of tort reform,” Ciampolillo said. And stripping away the VICP would “limit the rights” of vaccine-injured people “as opposed to expand them.”
Covid and Kids
Kennedy’s desire to cover Covid injuries with the VICP would be no small feat, either.
Covid vaccine injury claims fall under the Countermeasures Injury Compensation Program. Created to grapple with public health emergencies, the CICP—also a litigation shield for companies—is opaque, slow moving, and a worse venue than the VICP, attorneys say.
Before leaving office, the Biden administration extended CICP coverage of Covid claims into 2029. In January, days before the US presidency changed hands, a person allegedly injured by a Covid shot sued the HHS for failing to add the shots to the VICP.
Altom Maglio, founding partner of mctlaw and attorney behind the lawsuit, said it would be “wonderful” if the Kennedy agenda ultimately covered Covid vaccines under the VICP.
Kennedy’s actions, however, seem to be in conflict with this idea, some observers note. They point to his remarks about removing the recommendation for Covid vaccines for healthy children and pregnant women.
“Saying that he wants to bring the Covid vaccine into the VICP, but limiting the recommendations to children and pregnant women that would allow it to be covered under the VICP are inapposite,” Ciampolillo said.
More broadly, Kennedy’s skepticism of the number of vaccines given to children could prove problematic.
If CDC recommendations for vaccines to be administered to children or pregnant women “narrows, then the coverage of the NVICP could also narrow,” Ciampolillo said.
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