Chapter 4: Response to Vaccine Immunity: The National Childhood Vaccine Injury Act and Its Consequences

In “Chapter 4: Response to Vaccine Immunity: The National Childhood Vaccine Injury Act and Its Consequences,” Hampden T. Macbeth, a Staff Attorney at the State Energy & Environmental Impact Center at the New York University (NYU) School of Law, examines the forces that led to the adoption of the National Childhood Vaccine Injury Act (NCVIA) in 1986/1987 and its mixed legacy. 

All 50 states and the District of Columbia have long required children to receive vaccines for a range of diseases to attend public schools. Childhood vaccines have been massively successful: they have reduced targeted diseases by 90 to 100%, prevented millions of hospitalizations and hundreds of thousands of deaths, and generated over one trillion dollars in economic benefits. Yet in a small number of cases, the application of childhood vaccines has caused lasting and permanent physical harm, including entering shock-like states, convulsions, and even death in exceptional cases.

In the 1980s, a variety of factors—greater societal awareness of the dangers of some childhood vaccines, rising levels of tort lawsuits against manufacturers of faulty vaccines, unpredictable outcomes for parents pursuing vaccine injury claims on behalf of their children, and the combination of rising prices and shrinking supplies—led to a push for a legislative resolution to this vaccine crisis. This is the story of the stakeholders—parents of harmed children, vaccine manufacturers, organizations of medical professionals, and Congress, among others—that were instrumental over the course of several years in the ultimate adoption of the NCVIA. The NCVIA created an alternative resolution process that created a pathway for victims to secure compensation for vaccine-related injuries outside of pursuing tort claims in state courts through a no-fault, Vaccine Injury Table (VIT) administered by special masters.

The chapter also explores the noteworthy post-enactment tale of the NCVIA. Its implementation and amendment as well as its interpretation in U.S. Supreme Court decisions following its 1986/1987 adoption contain important lessons for the design and implementation of future legislative resolutions to public health and environmental challenges. Most notably, the NCVIA succeeded in achieving its goal of reducing vaccine manufacturers’ exposure to tort lawsuits. The NCVIA’s alternative resolution process was also designed with sufficient flexibility that it has been able to handle and respond to events unforeseen by its stakeholders. For example, the vaccine against diphtheria, tetanus, and pertussis (DTP), the third shot of which caused generalized seizures, encephalopathy, and diminished intellectual capacity, is no longer used in this country, and the NCVIA now compensates adults (not just children) injured by the seasonal influenza vaccine. The alternative resolution process was also able to handle a tidal wave of scientifically unsubstantiated claims that the measles, mumps, and rubella (MMR) vaccine and thimerosal (a vaccine preservative) caused autism.

But this process is not without flaws, as the NCVIA has not worked as Congress intended. Represented by Department of Justice attorneys, the Department of Health and Human Services (HHS) has aggressively contested petitions for compensation, greatly slowing the processing of compensation claims. Further, HHS initiated a series of changes to the VIT that greatly reduced victims’ chances for recovering for their injuries, often leaving victims uncompensated. Finally, observers do not credit the NCVIA for materially improving the development of  safe and affordable vaccines.

About the Author

Hampden T. Macbeth is a Staff Attorney at the State Energy & Environmental Impact Center at NYU School of Law. He graduated cum laude from Occidental College with a BA in Diplomacy and World Affairs and received his JD from Georgetown University Law Center, where he was managing editor of the Georgetown Environmental Law Review and graduated cum laude.