Smallpox Vaccine Injury Law Project

AHLA Teleconference on Smallpox Vaccination Law

Legal Issues

The Law Until 24 January

Unless Congress Acts, the Homeland Security Act does not go into effect until 24 Jan 03 and the protections are not triggered until the Secretary of HHS makes a declaration under the Act.

Until the Act is in effect, there are no special legal protections for hospitals and health care workers.

Given the history of vaccine litigation and claims for diseases spread to third parties in hospitals, it is expected that cases based on third party spread will be difficult to defend.

This is a problem because hospital employees are being vaccinated while on military reserve duty and are returning to work prior to 24 Jan 03.

Worker's Compensation

It does not appear that the Act has any effect on worker's compensation liability.

Health care employers will be liable under worker's compensation if employees suffer complications from direct vaccination or secondary spread of vaccinia.

Some comp carriers are questioning whether this is a worker's comp injury, and comp coverage is spotty in some states.

Costs of Furloughs

The Act is silent on whether employers can require vaccinated workers to take vacation or sick time for furloughs until their vaccination has healed.

There is an OSHA ruling on hepatitis b immunizations that indicates that a waiver of liability would be a cost to the employee, and employees should not bear the costs of immunizations.

Analogizing to smallpox, the Act's requirement that the vaccination be voluntary seems to require that the employee not bear the cost, which would include furloughs.

Protections under the Act

Assuming that the Act fully covers hospitals and health care workers, all tort claims would be filed against the United States under the Federal Tort Claims Act (FTCA).

The FTCA requires that the injured person prove negligence by the law of the state where the injury occurred. Since the injured person must file an administrative claim before suing, HHS could pay all claims as a substitute for a compensation system.

Hospitals and health care workers would have no liability for claims filed under the Act.

The only specific exceptions would be use of the vaccine outside of the federal program, such as black market vaccine.

Questions about the Act

The CDC has questioned whether the Act applies to hospitals generally or only to persons directly administering the vaccine.

Senator Daschle, Kennedy, and others claim in Sentate Bill 6 that the Act does not protect hospitals unless they administer the vaccine and does not protect vaccinated workers who spread the virus.

Secretary Thompson of HHS has written a letter to AHA asserting that the Act does cover hospitals whose employees participate in the plan without regard to who vaccinates them.

Other panelists will discuss this and proposed legislation to address it.

If the coverage of the Act is limited, hospitals will retain significant legal liability.

Should our hospital participate?

One serious question is whether the smallpox vaccination plan is epidemiological sound.

Some institutions have refused to participate because the plan does not address many public issues and will not prepare a community for a smallpox outbreak.

 

See Smallpox Vaccine Injury and Law Guide for more information.