From the start, agency officials worried that the program might create an exaggerated public impression of the risks of vaccines. At a congressional hearing before passage of the bill, Assistant Secretary for Health Edward N. Brandt Jr. warned that despite the program's laudable goal, it could "provide a significant disincentive to childhood vaccination programs."
Burden of Proof Shifts
In 1995, the government changed the rules of the vaccine court in a way that made cases more contentious, protracted and harder for petitioners to win.
Officials amended the vaccine injury table, a set of guidelines that had tilted many cases in petitioners' favor. According to the table, if certain symptoms appeared within a specified time after a shot, the vaccine was deemed the culprit unless the government could prove another cause. Many "table injuries" were simply conceded by the government, leaving only the amount of compensation to be determined.
A few amendments changed all that. In one major shift, "seizure disorder" was scratched from the table as a telltale sign of injury from a DPT shot. And a new, more restrictive definition of encephalopathy -- or brain dysfunction -- meant that many conditions that had been table injuries suddenly were not.
Somsak said the table was changed for one reason only: to better "conform with the scientific evidence."
But the upshot was that in many cases the burden shifted from the government to prove the shot didn't cause injury to the petitioner to show that it did. Because it's usually hard to prove with certainty that a vaccine caused harm, the effect of the change was profound.
The Times analyzed a vaccine court database of 10,741 claims filed over 16 years. The analysis showed that in the three years before the changes, the government conceded one-third of all claims. Of cases filed in that period, compensation was awarded in just over half.
But since the changes took effect March 10, 1995, the government has conceded just one claim in seven. About 35% of petitioners have received compensation.
And cases dragging beyond five years have become increasingly common.
Even the court's top judicial officer, Chief Special Master Gary J. Golkiewicz, has lamented the drift toward "full-blown litigation."
"Clearly," he said in one of his rulings, "that is not what Congress intended when it designed the program as an alternative to tort litigation."
