Are The Vaccine Court's Requirements Too Strict?
DAVID GREENE, HOST:
[POST-BROADCAST CORRECTION: Our radio introduction to this story does not correctly present the story that follows. The story looks at how the vaccine court adjudicates cases where people claim to have been injured by a vaccine. It does not address vaccine effectiveness or any trade-off between effectiveness and the risk of side effects.] And now to the competing claims about vaccines. Do they reliably protect against disease, or are they a greater risk themselves? This is often the central question at the vaccine court. It's part of the Federal Claims Court here in Washington, D.C. It deals with cases where someone may have been harmed by a routine vaccination. The court has to decide which claims are reasonable and which are not. NPR's Anders Kelto reports.
ANDERS KELTO, BYLINE: Imagine you're a judge, and before you is the case of Mary and Dave Wildman. Back in 1997, Mary took their one-year-old son, Nicholas, to the doctor for the measles, mumps, rubella, or MMR vaccine. And right after he got the shot, Nicholas started crying.
MARY WILDMAN: I mean, this was unbelievable screaming.
KELTO: Mary and her mom started driving him back to their home in Evans City, Pa.
M. WILDMAN: We got about 10 minutes down the road, and my mother was driving. She had a pull over because he was screaming so violently.
KELTO: He was also running a fever. When they got home, they give him some Tylenol and a bath. A few hours later, he finally stopped crying. But Mary says from that moment on, he was different.
M. WILDMAN: He wasn't talking anymore. He wasn't playing with brother who's only 18 months older than he is. At that point, it was like I had taken my baby to the doctor and brought somebody else's baby home.
KELTO: About a year later, Nicholas was diagnosed with a severe intellectual disability. Mary and Dave tried to figure out what caused it, and eventually they blamed the vaccine.
M. WILDMAN: Prior to him getting that vaccination, every milestone was on target. Everything was developing normally. And after that vaccine and the high fever, I know something happened. There's no doubt my mind.
KELTO: It seems pretty clear-cut, right? Nicholas seems to have had a horrific reaction. But now listen to the counterargument from Dr. Paul Offit. He's a vaccine expert at the Children's Hospital of Philadelphia.
PAUL OFFIT: It just doesn't make biological sense that the MMR vaccine would cause those kinds of reactions.
KELTO: Offit says the MMR vaccine has been studied for almost 50 years, and there's just no scientific evidence that it can cause brain damage. A more likely explanation, he says, is that something else caused Nicholas's problem - maybe something in his genes.
OFFIT: Certainly there are disabilities - so, for example, like the genetic disorder Dravet syndrome, which can appear in the first or second year of life and can lead to long-term and permanent intellectual disabilities.
KELTO: Offit says a number of developmental problems first appear around the age when kids get vaccinated, but that doesn't mean there's a connection.
OFFIT: The rooster crows and the sun comes up, but the sun's not coming up because the rooster's crowing. If you stop the rooster from crowing, the sun will still come up. And the same thing is true here. If you don't give vaccines, there are still going to be the same number of children who suffer permanent intellectual disabilities because vaccines don't cause this problem.
KELTO: Now the case seems pretty clear-cut the other way, right? So, as a judge, what do you do? The vaccine court was created back in the 1980s as an alternative to the civil courts, which were expensive and unpredictable. Anna Kirkland, a professor at the University of Michigan, has written a book about the vaccine court. She says the government panel that created it wanted to favor the families.
ANNA KIRKLAND: They really wanted to err on the side of compensation because they knew that sometimes the science would be unclear.
KELTO: Judges are supposed to follow that unwritten mandate - be generous, err on the side of compensation. But they also need to see evidence, evidence that the vaccine really could've caused the problem. Kirkland says that puts the judges in a difficult position.
KIRKLAND: They want to be generous. They want be quick. But yet, they've got to reach this, more likely than not, that the vaccine actually caused the injury. And there has to be some kind of scientific basis for that.
KELTO: In the case of Mary and Dave Wildman, there was no scientific basis for their claim that the MMR vaccine caused their son's intellectual disability. So their only hope was to find a doctor who would serve as an expert witness - someone who would say, I believe the vaccine caused Nicholas' problem, and here's how that can happen biologically. Mary says they searched for someone like that for 15 years, but they failed.
M. WILDMAN: To find a doctor out there, you know, they don't want to go out on that limb.
KELTO: The court dismissed their case in December. Nicholas is now 19, and the Wildmans say he's pretty hard to deal with.
DAVE WILDMAN: He's about 280 pounds.
M. WILDMAN: He still wears diapers.
KELTO: And, Dave says, he's the kind of kid who will just run away.
D. WILDMAN: We got a six-foot fence the whole way around our house. We got six locks on every door. Our windows are screwed shut because if he gets out, you know, he'd run right out - we live on a main street - he'd run right out into traffic. He doesn't know any better.
KELTO: Mary says he needs a lot of extra care. Right now, his therapies, his transportation and his special activities are all paid for.
M. WILDMAN: But when he turns 21, there's, like, nothing. And so, then what?
KELTO: The Wildman's story raises an interesting question - is it too hard to win a case in the vaccine court? Peter Meyers, a law professor at George Washington University, says yes, it is. He says we should compensate folks like the Wildmans, even if the scientific evidence isn't totally convincing.
PETER MEYERS: Even if we don't know for sure that the vaccine caused the injury, but there's a chance that it did, shouldn't we compensate those people in that situation?
KELTO: After all, he says, that was the original mandate of the court - be generous. And Meyers says, look, there's almost $4 billion in a compensation fund for vaccine victims.
MEYERS: There's been many years in which it's earned more interest than it's paid out in claims. Give me a break.
KELTO: Why not use that money to help more people, he says. But Anna Kirkland, the professor from Michigan, disagrees. She says the bar for winning a case in the vaccine court is already as low as possible in legal terms. You just have to show it's more likely than not that the vaccine caused the injury - a 51 percent chance. If that bar were to be lowered even further...
KIRKLAND: Then we would be saying we're going to compensate for vaccine injuries even though we don't really think, on balance, the vaccine caused this injury. That's hard to justify.
KELTO: Or look at this way, she says, as a judge, would you award money to someone even if they didn't have good evidence to support their case? Anders Kelto, NPR News, Washington. Transcript provided by NPR, Copyright NPR.