Violent metaphors

Orac is reporting that a planned Congressional hearing into the National Vaccine Injury Compensation Program has been canceled. This is unambiguously good news; the hearing was probably a political favor being done for anti-vaccine cranks who despise the NVICP. Their hatred for the Program can be confusing, given how much better it is for their position than the alternative.

The short version
What are we talking about? The NVICP is a special court set up by Congress for people who claim they were injured by vaccines. Instead of having to sue the vaccine makers, which is an incredibly expensive, difficult, and time-consuming process, those plaintiffs get fast-tracked through a non-adversarial system. That means that instead of making them fight with the vaccine makers’ lawyers, the government pays for the plaintiffs’ counsel and works with them to determine whether compensation is appropriate. Plaintiffs in the NVICP win their cases much more often than plaintiffs in the normal product-liability courts, and even if they lose they don’t have to pay for their own lawyers.

But despite those advantages, anti-vaxers are trying to pressure Congress to kill the program. On the surface, it doesn’t make sense—the NVICP is a much friendlier place to bring a claim of vaccine injury than normal courts. But there is a hardcore cadre of anti-vaxers who still believe that vaccines cause autism. The NVICP has rejected that claim on the strength of the evidence, and so those opinion leaders have set their sights on it. They hope that by destroying it, they can get their autism claims back into normal courts where they might get lucky with a sympathetic judge and jury.

Of course, this would be terrible for people who have actually suffered some side effect from vaccination—it’s rare, but it happens. Those people are much better off in the NVICP than in normal courts, where lawsuits are excruciatingly slow, hideously expensive, and incredibly uncertain. They would lose the NVICP, which is much faster, vastly cheaper, and far friendlier to legitimate claims of injury.

How it works

The NVICP is an attempt to manage the negative externalities—the costs incurred by patients, essentially—of vaccines. It is true that vaccines sometimes cause harmful side effects, although not to the extent alleged by anti-vaxers. Typically people who suffered harm because a vaccine was negligently designed or manufactured would sue, just as with any other product. (If it was a minor who was hurt, their parents would sue in their place.) This works well enough for trucks, cribs, microwaves, and all sorts of other products. But it can only take a few adverse jury verdicts to make it uneconomical to manufacture a product. That’s one thing if the product is a microwave. If it’s a DPT vaccine, though, then we’re all in trouble.

Vaccines provide a huge public service, protecting people from terrible but preventable diseases. To do that, enough people need to be vaccinated to provide herd immunity. If it isn’t economical to produce a vaccine, or is only economical for a few producers, then there probably won’t be enough doses available to achieve that. This nearly happened in the 1980s, when almost every manufacturer of the DPT vaccine took its product off the market following a series of jury verdicts for plaintiffs suing vaccine makers.

Congress acted to protect the public welfare by creating the NVICP, which created a new venue just for cases in which someone alleges that a child has been hurt by a vaccine. (That’s a little oversimplified, like most of this explanation—there is actually a list of covered vaccines.) Instead going to the same court they would with any other product, the plaintiff files a complaint with the United States Court of Federal Claims. The COFC’s Office of Special Masters handles the case. The plaintiff can’t go to a regular court, they must take their case to the Office of Special Masters. When we say “the NVICP,” we’re usually really referring to the Office of Special Masters.

There are eight Special Masters, appointed by the COFC. They hear the vaccine cases themselves, and are much more involved in the case than a normal judge would be. That’s because their role is not the same as a normal judge. Judges referee an adversarial process, in which plaintiffs and defendants fight against one another. The NVICP is designed to create a non-adversarial process. The Special Masters are charged with taking an active role in the process to help manage cases more quickly and fairly than would be possible otherwise. They essentially try to create a collaborative process to uncover the facts and determine a fair outcome. (This doesn’t work in most courts, because there are far too many cases for judges to get involved in the same way and the American judicial system has evolved different rules.)

One of the things that makes the system “non-adversarial” is that the vaccine makers aren’t really acting as defendants. If the plaintiff prevails, the money for their compensation comes from the Vaccine Injury Compensation Trust Fund, which gets its money through an excise tax on vaccines. This essentially puts all vaccine makers on the hook for compensating for vaccine injuries, without putting any one of them at excessive risk of being destroyed by litigation.

Benefits to plaintiffs

The NVICP is very favorable to plaintiffs. Among other benefits, they need only show that they have been injured and that they would not have been injured but for the vaccine. They don’t need to prove it beyond a shadow of a doubt, either, just show that the evidence makes it more likely than not. In fact, the Office of Special Masters maintains a table of injuries known to result from vaccines; if the plaintiff proves an injury on the table, that occurred within a specified amount of time after the vaccination, causation is presumed. That is enormously more favorable to plaintiffs than the rules in place in normal courts.

Plaintiffs also don’t have to jump through the hoops it takes to introduce scientific evidence in normal court—the Special Masters give them tremendous leeway in showing causation. (But not total leeway. Plaintiffs must still show a medical theory supporting the injury, and the NVICP determined in 2010 that the evidence was overwhelmingly against the hypothesis that vaccines containing thimerosal caused autism.)

How much of a benefit is this to plaintiffs? Dorit Rubenstein Reiss, a law professor at UC Hastings, wrote an excellent piece discussing a recent briefing anti-vaxers put on in anticipation of the now-canceled hearing. In it, she calculated that NVICP plaintiffs win approximately 26% of the time—substantially more than product liability plaintiffs in traditional courts (who win about 20% of the time).

Even the remaining 74% are benefiting. The NVICP pays for their lawyers even when they lose. In normal courts, plaintiffs who lose their case are still on the hook for their lawyers’ fees. Knowing this, lawyers are reluctant to take cases from plaintiffs who aren’t wealthy or who have borderline cases. Those plaintiffs benefit tremendously from the NVICP, since they might not ever get a day in court otherwise.

There are other benefits as well, such as the fact that the NVICP essentially sets up a strict-liability system. But as I’m not an expert in the court, it doesn’t make sense to try to break down every possible benefit. I think it’s enough, and plainly true, to say that the NVICP has been a tremendous boon to plaintiffs alleging they were injured by a vaccine.

So why kill it?

Professor Reiss raises a fascinating question—why are anti-vaxers trying to shut down the NVICP when it provides so many tremendous advantages to vaccine plaintiffs? She points out that really only two types of people would benefit: “plaintiffs who cannot prove causation and lawyers who would like more control of the fee structure.” Everyone else would get the short end of the stick.

The first category is the most interesting. The most visible plaintiffs who cannot prove causation are those who claim a vaccine caused their child’s autism. The NVICP is clearly on the side of science on that question, and acknowledges that the evidence does not support a link between vaccination and autism. If those plaintiffs could kill the NVICP and get back into normal trial courts, they would at least have a small chance of winning the lottery with a sympathetic judge and jury.

There are also the public figures and opinion leaders in the anti-vax camp, who are largely aligned on the autism issue. The NVICP is a convenient bogeyman for them, since it is the public-facing entity that is responsible for denying the claims of parents who believe vaccines caused their child’s autism. And the misguided autism warriors are the loudest voices in the anti-vaxer community. (The comments to Professor Reiss’s article bear witness to how misinformed and monomaniacal those voices can be.)

The interests of the vaccines-cause-autism brigade are diametrically opposed to those of people who suffer the real but rare side effects of vaccines. (Going by the NVICP’s numbers, about 3,500 compensable cases in over two decades, or less than two hundred out of the roughly 10 million childhood vaccines given each year). They are desperate to wring one last bit of life out of their dead, dry husk of a theory. Their gambit would cost people who have suffered actual harm from a vaccination their best chance at compensation.

It would also put vaccine manufacturers at renewed risk of being destroyed not by strong court cases—the most sensationalist anti-vax claims have long since been conclusively debunked—but by the costs of fighting those battles over and over again. Anti-vaxers are persistent and show no signs of updating their theories to match scientific evidence; they would certainly be in court tomorrow pushing their autism theories if they had the chance. This may be the ideal outcome for an interest group Professor Reiss did not mention: opinion leaders and public figures leading the anti-vax camp. But here, too, their goals would come at a terrible cost.

Colin McRoberts (@Kolyin) is a Texas attorney and consultant