“A Dose of Reality” Does Not Support Abolishing VICP

by Dorit Rubinstein Reiss, Professor of Law
UC Hastings College of Law
Posted: August 7, 2015


In a recent article published in the Pennsylvania Law Review, Prof. Nora Freeman Engstrom suggested that the arguments for moving medical malpractice from the regular tort system to health courts are flawed, because we have reason to doubt whether health courts will fulfill the expectations of their proponents. She drew on the experience of the National Vaccine Injury Compensation Program (VICP) to demonstrate the point, suggesting the program has “stumbled” and did not meet expectations.

The article is thorough, thoughtful, and informative. It’s a valuable, important read for those considering whether to support health courts as an alternative to liability via the tort system. That said, I would like to point out some limitations and problems in Engstrom’s discussion of VICP, and suggest that the claim that the program “stumbled” is problematic.

I would like to emphasize three points.

First, note that this post is not a comprehensive response to Engstrom, nor is it on the subject of whether or not the US should adopt health courts. Engstrom raises many important points pertinent to health courts which I do not address in this post.

Second, I want to emphasize that for those interested in VICP, Engstrom provides a thorough, well supported, and accessible introduction to the structure and functioning of VICP. There is much to learn from it.

Third, I disagree with the implied interpretation suggested by anti-vaccine activists that flaws make the program a failure. For that reason, I would avoid saying that the VICP “stumbled”. Though Engstrom says the VICP has stumbled, Engstrom never says that the VICP is a flat-out failure. In fact, the last pages of her article point out several of the VICP’s strengths and pointing out the program’s many advantages is critically important. While it’s possible the VICP is imperfect, there’s little evidence it’s failed altogether. Imperfect is not failing. But the term “stumbled” is – and will be – used by anti-vaccine activists to claim otherwise. Likewise, the Press Release by Stanford is unhelpful since it uses language that supports that view.

Those who object to vaccination are already making inappropriate use of Engstrom’s analysis. The anti-vaccine movement has been deeply opposed to the VICP for some time. They have called for the abolishment of the program and for returning adjudication of vaccine injuries to state courts. That, in my view, would be a real error because sending vaccine injuries to the courts would be more difficult for those with valid claims as well as for our overall health by endangering the vaccine supply.

The National Vaccine Injury Compensation Program is an administrative program created by Congress in the 1980s to solve two problems. One was the supply problem. Pharmaceutical companies were being crippled by liability litigation and were abandoning the vaccine manufacturing industry entirely. The program was an attempt to retain vaccine manufacturers and reduce the number of companies that were opting out of the industry by offering them limited liability protection. The second was to assist citizens who may have been harmed by vaccines in getting fair and timely compensation. (I addressed the technical details of how the VICP is substantially easier on plaintiffs, also known as petitioners, in another post here.

In her article, Engstrom raises three central problems with VICP, and then highlights four issues that lead, in her view, to the problems. This post proceeds in three part: examining the problems Engstrom raises, examining her explanations for them, and then in closing, explaining why VICP is still a better option for those claiming vaccine injuries than the courts of justice.

Read Professor Reiss' full article as a PDF version by clicking here.

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