Supreme Court vaccine ruling: The system for compensating injured children doesn't work.

Health and medicine explained.
Feb. 23 2011 1:32 PM

The Real Problem With Vaccines

Our system for compensating injured children is hurting—and this week's Supreme Court ruling doesn't help.

(Continued from Page 1)

In the early days of the vaccine court, "residual seizure disorder" following a whole-cell pertussis shot—Hannah Bruesewitz's injury—was listed on the table.

But in March 1995—a month before her family filed their claim—a special government advisory committee gave the injury table a radical overhaul. Under the new system, residual seizure disorder no longer qualified a child for compensation. Instead, Hannah's family needed to prove that the vaccine caused her injury, and they were unable to do so.

The arguments that led to the table change are quite interesting to read. The committee members were debating questions about the nature of public health, risk perception, and fairness. Those who wanted to update the table argued that it was too generous to supposed victims and harmed the reputation of vaccines by making them seem more dangerous than they were.

Others, including the late whooping cough expert Gerald Fenichel, argued that it was better to err on the side of the parents, even if they were wrong sometimes. While he agreed that the data suggested the whole-cell pertussis shot wasn't responsible for brain damage, "it is not possible to show an event that may occur one in a million times." Since so many people believed that the damage did occur, he said, it would be better not to take the narrow scientific viewpoint, and instead to compensate "some number of people who perhaps have not been injured by the vaccine, to make the program work."

This same argument, to be sure, could be made for the discredited vaccines-cause-autism theory. But in that case, science has repeatedly failed to find a link and the theories of causation were extremely weak and speculative. The evidence was a bit murkier with the whole-cell pertussis vaccine.


By gutting the table of injuries, the Department of Health and Human Services has made the vaccine court difficult for parents to navigate—an issue that the Supreme Court ruling fails to address. In the view of some experts I've heard from, the current structure of the vaccine court may even encourage its judges—the special masters—to bend over backward with unscientific theories in order to justify an award to a hurting family.

Meanwhile, pertussis remains a disconcertingly difficult disease to manage. It is hard to diagnose, and the mechanisms of immunity remain somewhat mysterious. Put three whooping cough experts in a room together and you'll get three explanations for what type of antibodies protect you against the disease.

Nor does anyone have a convincing argument for why whooping cough has returned with such a vengeance over the past decade. In California last year, it infected more than 8,000 people and killed 10 babies.

The epidemic can be blamed partly on people who don't vaccinate out of fear of autism. But the resurgence has also coincided with the replacement of whole-cell whooping cough vaccines. Some experts believe that the first-generation acellular vaccines may have failed to provide good protection, leaving teenagers and young adults susceptible, and allowing them to pass the disease to unvaccinated children.

Strangely, the legacy of this obscure controversy continues to ricochet around, from the courts to the classroom.

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