If the government restricts individual rights for the collective good, the reasoning went, then that government should assume responsibility for the consequences. As one law review put it, the purpose was “to compensate children who had been injured while serving the public good.”
In a 2015 analysis of the program, Engstrom found that this was not the case. Only about a quarter of claims were being compensated, and often not in a timely manner. She cited the fact that the average vaccine-injury claim took longer to adjudicate than the average case alleging medical malpractice. “The VICP,” Engstrom wrote, “has simply failed to offer compensation as consistently, as quickly, as easily, or as simply as its proponents had predicted.”
Since Engstrom’s analysis was published, though, there has been a dramatic change. For most of the program’s history, the program denied a large majority of claims. But between 2015 and 2019, 77 percent of claims were compensated. In 2004, the VICP compensated just 57 cases. In 2017, it paid 706. Engstrom called the trend “a big shift.”
While this change brings the VICP closer to its initial mission, the sheer amount of money changing hands may also amplify public perception of the risk of vaccines. From a low of $54 million in 2006, total outlays steadily increased to $282 million in 2017, and are on pace to exceed that this year.
This time period has also seen rising public skepticism of the pharmaceutical industry and online conspiracies propagating more readily than ever. In January of this year, Nair and Meissner, along with the inventor of the rubella vaccine, Stanley Plotkin, addressed the growing concern that all of this money was exaggerating parents’ sense of risk. They wrote in the Journal of the American Medical Association: “Although the establishment of the VICP may support some arguments of those who question the safety of vaccines, its existence promotes wide acceptance of vaccination as a public good that is also humane to those who perceive they have been injured by this public good.”
Perception of harm is a concept that has proved trickier than the law may have predicted. The Reyes case could seem about as straightforward as possible: A child developed polio after being given an oral dose of a live polio virus. But even a case as apparently obvious as that is difficult to irrefutably prove—unless the patient had been monitored in a sealed isolation chamber to guarantee there had been no other exposure to polio virus.
In an attempt to standardize and expedite the compensation process, many of the decisions are based on a document known as the Vaccine Injury Table (the existence of which is stipulated in the 1986 law). It details myriad illnesses, disabilities, and injuries that are, as Nair put it, “presumed to be caused by a vaccine if no other cause is found.”