Reporting from Washington — The Supreme Court struggled Tuesday to decide whether Congress left parents the option to sue a drug maker for selling a vaccine with potentially dangerous side effects.
Vaccines can protect millions of children from deadly diseases and serious illness, but they can cause injury or illness to a small fraction of those who are inoculated.
Congress set up a fund in 1986 to compensate parents of children who were injured by a vaccine. But many parents have been dissatisfied with the fund.
The justices are considering the case of a Pittsburgh woman who suffered seizures as a baby shortly after she was given a third dose of a vaccine for diptheria, tetanus and pertussis. Hannah Bruesewitz, now 19, suffered developmental disabilities, and her parents sought compensation in 1995.
A month before that, the "vaccine court" set up by Congress dropped "residual seizures" from the list of injuries that called for compensation. Frustrated, the family sued, but their claims were dismissed by federal judges who said the law barred such suits against vaccine makers.
"We have never had our day in court," said Washington lawyer David Frederick, who represents the Bruesewitz family.
Justices Sonia Sotomayor and Ruth Bader Ginsburg took the family's side, arguing that because a safer vaccine was available in the early 1990s, the drug maker could be sued for selling a more dangerous type of vaccine.
But Justices Anthony M. Kennedy and Antonin Scalia said Congress had passed the law to shield manufacturers from lawsuits. "There is a tremendous expense" to defending against lawsuits, Kennedy said. The worry was that vaccine makers would get out of the business if they were exposed to massive lawsuits, he said.
The case, Bruesewitz vs. Wyeth, could end in a 4-4 tie; new Justice Elena Kagan withdrew because she participated in it as U.S. solicitor general. If that happens, the lower court ruling favoring the drug maker would stand.
It is also not clear how the outcome would affect the thousands of claims involving children with autism, a disorder commonly cited in vaccine lawsuits. Even if the court rules for the Bruesewitz family, they could go back to court, but the ruling would still require them or other parents to prove that the vaccine caused the harm to their child.