- WASHINGTON (AP) - Several nights after Carol McFarland's healthy 1-year-old
son received a routine measles vaccination, his arms began shaking and
his eyes rolled back. Next came spells of limpness. The boy had brain damage
-- the result, doctors said, of a rare reaction to the shot.
- After struggling with Brent's care for
years, the McFarlands applied to a program created by Congress to compensate
people in the unusual instance when a vaccine, a cornerstone of preventive
care, does harm.
- The McFarlands waited six years before
the government conceded in 1996 that Brent was entitled to compensation.
It took another two years of legal wrangling before a special judge decided
on an amount.
- Since the vaccine injury compensation
program began 10 years ago, about 5,300 claims have been filed. More than
3,200, or 60 percent, have been rejected. The program has awarded $900
million to 1,300 families. Many other cases remain unresolved.
- The program receives $110 million per
year from taxpayers to pay older cases like the McFarlands' and now has
$1.3 billion for new cases. Yet the McFarlands felt squeezed.
- "They treated us like we were stealing
from them," said Dale McFarland, a retired oil company worker in Corpus
- Parents, applicants' lawyers and activists
who lobbied for compensation say the program, which pits government lawyers
against claimants, has turned unnecessarily adversarial and even stingy.
- They blame poor administration, lack
of congressional oversight and modifications that make it harder to win
- Officials staunchly defend the program,
saying the process is more respectful and easier for families than a lawsuit,
has helped stabilize vaccine prices and fosters new vaccine development
by deflecting suits away from drug companies.
- "It has really done what it was
intended to do," said Dr. Claude Earle Fox, head of the Health Resources
and Services Administration, the division of the Department of Health and
Human Services that administers the program.
- Older cases like the McFarlands' were
delayed as the program struggled to handle the flood of claims filed in
the early years, officials said.
- Few ever sue drug firms, doctors
- By law, people injured by vaccines must
apply for compensation before suing drug companies or physicians who administered
the shots. Those who lose can sue, but few do.
- A tax on vaccines, paid by consumers,
goes into an award fund, which has grown to a record $1.3 billion. The
fund took in $160 million last year and paid $43 million in benefits. Awards
average around $600,000 to $700,000.
- About 200 million vaccines are given
each year. Serious reactions, such as seizures, brain damage or death,
are extremely rare. They are more likely to be caused by an illness or
abnormality already present, but unrecognized, before the vaccine was given,
the program's doctors say.
- Since it began, the program's annual
administrative costs have nearly doubled to $9.5 million with the largest
share going to lawyers. Officials attribute the added expense to more cases
- The vaccine cases are decided by special
masters working in the U.S. Court of Federal Claims. The process is streamlined,
rules of evidence are relaxed and hearings are often held by teleconference.
- But John Euler, head of the vaccine lawyers
at the Department of Justice, said parents should realize it's still an
adversarial system. "The perception is that it may be kind of a walk-through,"
- The government is well-armed to litigate
cases, with 17 lawyers and 100 expert witness physicians.
- Maurine Sweet, a Kansas woman whose infant
daughter died two days after receiving a diptheria-pertussis-tetanus shot,
said the government's expert witness "took our testimony and riddled
it with doubt."
- "No parent should have to plead
with this government the story of their child's death," said Sweet.
After Sweet won, the government appealed the ruling but eventually settled,
awarding her $125,000. Death claims are capped at $250,000.
- Euler said sometimes the parents' testimony
is inconsistent with medical records and must be challenged. "We have
an obligation, we take an oath, to examine those assertions," he said.
- But Dr. Marcel Kinsbourne, a pediatric
neurologist and professor at New School University in New York City who
is an expert witness for applicants, said applicants are entitled to compensation
if their injuries meet a series of criteria and there is no clear evidence
that something other than the vaccine caused the problem.
- Kinsbourne said government lawyers often
argue against compensation even when there's insufficient evidence of an
underlying illness. Euler said the government relies on solid evidence.
- Change in eligibility rules criticized
- Critics say the government has put up
another stumbling block -- making it harder to prove injuries from the
diptheria-pertussis-tetanus shot, or DPT, which accounts for three-fourths
of all vaccine claims.
- Eligibility rules were changed after
a four-year review of a medical study that found insufficient evidence
to blame the vaccine for permanent neurological damage.
- Since the change in 1995, DPT cases have
become more difficult, time-consuming and expensive to prove and fewer
are being compensated, said Gary Golkiewicz, chief special master.
- The average time for applicants who prevail
is three and half years, and newer cases take a year less. Yet nearly 400
applicants have been waiting more than seven years for a decision, according
to program figures. Eight years after they applied, the McFarlands are
still waiting to receive compensation, due in the next several weeks.
- Brent McFarland, now 23, requires constant
care for his seizures, mental retardation and psychological problems. A
special master awarded him $115,000 a year until 2001 and then $86,000
a year for life, rejecting the government's recommendation to put him in
a less-expensive live-in facility that the special master called "rundown"
and poorly supervised.
- "They had no interest in our son's
well-being," said Dale McFarland. "They were just interested
in cutting costs."