- © 2008 Canadian Medical Association
The Supreme Court of Canada has urged its implementation, calling it an “excellent thing” to do. Ontario Superior Court Justice Mary Anne Sanderson went even further, arguing that “the road to public health should not be paved with individual victims.”
Provinces, meanwhile, have talked for decades of establishing programs, yet only Quebec has done so.
The harsh reality, though, is that no-fault compensation for people suffering from serious adverse side effects of vaccines remains a distant prospect for most Canadians. By contrast, the United States, Britain, Japan, Singapore, New Zealand, Germany, Switzerland, Denmark and more have implemented plans, some as early as 1961.
Proof of injury requirements vary, as does compensation. Most countries have tables of 10–80 questions, the answers to which are reviewed by experts. Britain pays a once-only amount of between £40 000 and £100 000 for 60% disability. In Japan, compensation includes a caretaker's allowance in additional to a pension and medical allowance.
In Canada, what compensation is offered is restricted to Quebec and can be traced back to a youngster named Nathalie Lapierre, who contracted acute viral encephalitis while being vaccinated for measles at the age of 5 and was left permanently disabled.
Her parents sued the Quebec government as well as the vaccine's manufacturer and distributor, seeking roughly $3.1 million in damages. The suit was eventually tossed as Supreme Court Justice Julien Chouinard in 1985 rejected arguments that damages suffered by an individual for the benefit of the community must be borne by society. In the absence of faulty administration, which would make a physician liable, vaccinations are but part of the “pitiless game of chance. … Fortuitous events are not the cause of obligations, they merely occasion them,” Chouinard wrote, later adding that although “recognition of the existence of an obligation independent of any fault would be an excellent thing, no such obligation exists in Quebec civil law.”
A year later, Quebec became the only province to have a no-fault insurance plan for those who suffer vaccine-related injuries. Over a 15-year period, 20 claimants out of 117 were compensated, with awards averaging $135 000. In a similar period in the United States, where compensation is based on predetermined amounts depending on the nature of the injury, 1390 out of 5335 claims were settled for awards ranging from $250 000 to $1.4 million, paid from a national vaccination injury fund to which pharmaceutical firms must make a 75-cent contribution for every antigen contained in every vaccine they sell. Those compensated waive their rights to sue manufacturers.
In Quebec, claimants can still sue, but if successful, must repay provincial compensation. To date in Canada, no one has won a civil claim.
“It's hard to prove cause or liability,” says David Scheifele, lead investigator and co-founder of the Canadian Paediatric Society's Canadian Immunization Monitoring Program. Approximately 75 000 children are admitted to hospital each year, less than 10 of which have had recent vaccinations. “In about 5 of those cases, an alternative cause for their sickness is identified, and 5 might potentially be suffering from post-immunization vaccine-related injuries. Most kids recover.”
Although heavyweights like the National Advisory Committee on Immunization has not taken a stance on no-fault compensation, Schiefele says a “safety net” is needed. “It won't be used very often. We also need to reassure politicians that severe harm is extremely uncommon.”
Cost fears appear to be at the root of political relucatance to implement no-fault compensation for the vaccine damaged. BC was “reluctant to write a blank cheque as there were no statistics on how frequently there might be claims,” Scheifele says.
Even now, the statistics are hazy, although the federal government is creating a national registry for health professionals to report adverse vaccine effects and this spring will establish a “hotline” for parental reporting.
Experts say no-fault compensation would be invaluable and justified. “It would be an important reassurance for parents,” says Scott Halperin, director of the Canadian Centre of Vaccinology at Dalhousie University. “It's a social contract, it makes a strong statement, ‚if something does go wrong, we'll take care of you.'”
But a Canadian program would have to be carefully thought out, says Dr. Monika Naus, associate director, epidemiology services at the BC Centre for Disease Control. “Compensation would have to be beyond a shadow of a doubt.”
As well, Naus adds, “what events would be covered, what level of confidence do we require to compensate an individual and to establish that causality is associated with a vaccine. “
Kumanan Wilson, a researcher and assistant professor in the Department of Medical and Health Policy at the University of Toronto, says it's impossible to project the cost of a program without knowing its parameters.
But the US program (at 75-cents per dose) has a projected surplus of US$6-billion, Wilson notes. Compensation “makes sense. If there's no problem with vaccine safety then it won't be expensive since there will not be many compensation claims. If there is even a small problem with vaccine safety, then we should have been compensating families of vaccine-injured children all along and the program is clearly justified.”