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Subject: HR 1287 -Subject: HR 1287 - Vaccine Injured Children's Compensation Act of 2001
Vaccine Injured Children's Compensation Act of 2001
Date: Tue, 17 Apr 2001 09:48:43 -0700 Organization: Vaclib
Dear Members and Friends -
Although I am more supportive of 1) the lawsuit against the pharmaceutical companies over negligence in adding thimerosal (mercury) to vaccines, 2) repealing ALL compulsory vaccination laws and 3) being clear on taking an anti-vaccine stance (if they aren't safe and do not work, this is state mandated medical experimentation!) --the below is a step in the right direction. Many families have suffered due to state mandated vaccine programs and should be compensated for their pain and suffering. Unfortunately, this does not affect the manufacturers of vaccines as much as it should....
There is important legislation in Congress which we need to let our Congressional Representatives know we support. The following is the information I received from Kathi Williams of The National Vaccine Information Center:
On March 28, 2001, HR 1287, The Vaccine Injured Children's Compensation Act of 2001, was introduced in the House of Representatives by Congressman Dave Weldon (R-FL) and Congressman Jerrold Nadler (D-NY). Other co-sponsors include Rep. Dan Burton (R-IN), Rep. Barney Frank (D-MA), Rep. Pete Sessions (R-TX), Rep. Jim McGovern (D-MA), Rep. Steve Horn (R-CA), Rep. Karen McCarthy (D-MO), and Rep. Jim Turner (D-TX.
This legislation will help families who are trying to get compensation for their children. You can call your Washington DC legislators at 202-224-3121 and ask for your member of Congress. If you do not know who that is, ask the operator to help you identify that person.
When you reach the member's office, ask to speak to the staff person handling health-related legislation. Give them the bill number and a short explanation and ask them to become a co-sponsor of the bill. Have them call Cong. Weldon or Cong. Nadler and offer their support. If any of the provisions in this bill have a direct bearing on your ability to receive compensation for your child, relate your story to the staff member. It is more likely that they will be interested in helping. Ask to meet with your representative when he/she is in the home district.
The original intent of the compensation program was to provide a quick and easy way for parents to get financial help for their vaccine injured children. The program is anything but quick or easy. This legislation is the beginning of an effort to restore the bill back to the original intent of Congress as to how this program was supposed to work.
Please call us at 703-938-0342 and let us know the response you receive or if you need more information.
This bill provides for changes in four very important areas:
1. The Statute of Limitations
In order to file a claim under the Vaccine Injury Compensation Program (VICP), it has to be brought within 3 years of the onset of the injury claimed to have been caused by the vaccine(s). It does not matter that the claimants may not have even known that the vaccine caused their injuries. HR 1287 will amend the statute to allow for what is called a discovery rule. This means that the statute of limitations (SOL) would not begin to run until someone knew or should have known that their injuries were caused by the vaccine(s) and that they had a possible claim under the Vaccine Injury Compensation Program. The time period for filing would be extended from 3 years to 6 years. The bill also has provisions which toll (stop the running of) the statute of limitations during minority (until a child reaches age 18).
This provision will help the families who never got a correct diagnosis of a vaccine injury and who did not find out about the program until too late.
2. The Burden of Proof
In law, there are different burdens of proof that are required for different things. For instance, to convict someone of a crime requires proof "beyond a reasonable doubt." Below that is a level of proof where something has to be proven by "clear and convincing" evidence. Next down the ladder is the burden used in traditional civil tort litigation, where the plaintiff has to prove something is more likely than not, "by a preponderance of the evidence." For Veterans' Claims and Workers' Compensation Claims, a lower burden is used, where the benefit of the doubt goes to the claimant.
In HR 1287, the Petitioner's burden of proof is reduced from the "preponderance" standard to the same language used in Veterans' claims. This bill states clearly that the purpose of the program is (as Congress originally intended) to generously compensate the children and other victims of vaccinations. It was Congress' intent to err on the side of over-compensating, rather than under-compensating, these people. This bill also makes it clear that this is a remedial program and the government should not raise a claim that this is a "waiver of sovereign immunity" (where the bill would be strictly construed against the Petitioners.)
Finally, the bill makes it clear that the government can still raise the possibility of an alternate cause (something other than the vaccination), but they must prove this alternate cause by "clear and convincing" evidence.
3. Interim Fees and Costs
One of the reasons so few lawyers are willing to get involved and stay involved in these cases is because the payment for attorneys is extremely low compared to the rewards of traditional civil litigation. Claimants and their lawyers must often wait years to receive reimbursement of their costs and payment of the attorneys' fees. Lawyers are expected to compete in a highly litigious environment, where the burden of proof is relatively high, without the benefits of traditional civil discovery, and with small and delayed compensation for their effort.
This bill would make it possible for claimants to petition, no more than once every 90 days, for payment of interim fees and costs. This will allow experts to be paid in a timely manner, and Petitioners will finally be able to conduct the testing and studies necessary to prove their claims.
Remember that the attorneys for the government are paid every thirty days and the attorneys for the children have to wait until everything is finalized, in many cases, waiting for years. In the meantime, the burden of financing the case falls on the shoulders of the family and the attorney. This provision will help level the playing field for the attorneys who are trying to help the families.
4. The Right to Refile
This bill allows for a petitioner to refile a claim if the original claim did not meet the $1,000 unreimbursed expense requirement (now no longer a requirement) or if the petitioner missed the deadline that is being corrected by HR 1287. If passed, the petitioner would have the right to refile within 72 months after turning 18 or within 24 months after the bill becomes law, whichever is a longer period of time.