A dose of reality for specialized courts: lessons from the VICP.

• Author: Engstrom, Nora Freeman
• Position: Vaccine Injury Compensation Program - III. A Case of Institutional Deja Vu: Similarities Between Health Courts and the VICP B. A Few Differences 3. Remedy: Non-Exclusive Versus Exclusive through Conclusion, with footnotes, p. 1673-1717

3. Remedy: Non-Exclusive Versus Exclusive

   Third, the Vaccine Act contains a tort opt-out provision: Though all seeking compensation for vaccine-related injury must initially file in the VICP, unsatisfied petitioners can reject the special master's judgment and file a traditional (albeit restricted) tort claim against the vaccine manufacturer or healthcare provider in state or federal court. Health courts, by contrast, would offer an exclusive remedy: Though a health court claimant might ultimately appeal an ALJ's denial to a judicial court, there is no de novo exit from the health court system.

   Highlighting the availability of the VICP's opt-out option and its concomitant unavailability within health courts, some have argued that the former "is not an apt analogy" for the latter "for the simple reason" that dissatisfied VICP petitioners "may pursue a civil action for damages." (185) This characterization, however, exaggerates the practical importance of the VICP's civil action possibility. As noted above, the petitioner's ability to file a civil suit for vaccine injury is circumscribed by law--and, perhaps more importantly, it is rarely exercised in practice. Even before the Supreme Court's recent (and further limiting) Bruesewitz decision, fewer than 0.5% of vaccine claimants who received an award within the VICP rejected their award in favor of a civil action. (186) Furthermore, also prior to Bruesewitz, "virtually all" unsuccessful VICP claimants acquiesced to the rejection, rather than initiating lawsuits in state or federal court. (187) No matter its on-paper possibilities, in other words, the VICP typically functions as an exclusive remedy--minimizing the practical effect of this formal distinction.

4. Attorneys' Fees: Fund Versus Petitioner

   Fourth and finally, both systems are similar in that both restrict fees to claimants' counsel and also calculate those fees using the lodestar method (hours worked times a reasonable hourly rate). (188) The systems differ, however, when it comes to claimants' attorneys' fees' source and certainty. The VICP pays from the Fund, and the sole prerequisite for payment is that the petition was brought pursuant to "a reasonable basis" and "in good faith." (189) By contrast, leading advocates suggest that in health courts a claimant's lawyer's fee would come from the claimant's recovery and would be conditional upon her success. (190)

   At first glance, it might appear that this difference is significant--that health court counsel, paid only if successful, would have a much greater incentive to screen clients prior to retention and zealously (maybe overzealously) advocate on clients' behalf. On the other hand, VICP lawyers, paid hourly irrespective of victory, might be more likely to accept dubious claims and, once retained, drag their heels, possibly prolonging litigation even after the case appears doomed. (191) Yet while these incentives surely exist to some extent--and might well promote both the filing of non-meritorious claims and protracted contestation in the VICP context, relative to the health court context--differences between the systems should not be overstated. In reality, VICP special masters award higher fees to counsel for prevailing as compared to non-prevailing petitioners, partially bridging the incentive gap between the two systems. (192)

   4. The VICP in Action: Health Courts are Unlikely to Resolve Claims as Predictably or as Quickly as Proponents Now Suggest

   Health court proponents have pointed to the above design innovations--pre-adjudication review, specialized ALJs, neutral experts, ACEs, the avoidability standard, published decisions, and streamlined damage determinations--and have asserted that these innovations will ensure that health courts will expedite adjudications (resolving nearly all claims within one year of the date of filing), quell the adversarialism of dispute resolution, and provide consistent, rational rulings that would "restore faith in the reliability of medical justice." (193) Indeed, as noted at the outset, achieving these administrative gains is central to health courts' appeal--and, upon adoption, health courts' ability to withstand inevitable constitutional attack. (194) The $64,000 question, though, is whether health courts' procedural innovations will usher in those salutary consequences. How confident, in other words, can we be of the above predictions?

   The VICP offers a near-ideal laboratory to consider that question. As seen above, the VICP shares most of the design innovations health court proponents now enthusiastically tout. Furthermore, echoing current predictions of health court processes, back when the VICP was created, Congress expressed confidence that the Program would resolve claims "quickly, easily, and with certainty and generosity," (195) while contemporary commentators predicted that the VICP would "offer prompt justice" (196) to vaccine-injured children while "guaranteeing]" equal compensation to "similarly situated individuals." (197)

   So, what do we learn when we assess health court advocates' claims through the prism of VICP experience? The picture is bleak. The VICP has simply failed to offer compensation as consistently, as quickly, as easily, or as simply as its proponents had predicted. Indeed, the U.S. Government Accountability Office (GAO) has studied the Program and concluded: "While [the Program] was expected to provide compensation for vaccine-related injuries quickly and easily, these expectations have often not been met." (198) A leader in the parents' lobby, instrumental in the Act's passage, has concluded that the VICP's administration has constituted "a betrayal of the promise that was made to parents about how the compensation program would be implemented." (199) And, the man who served for over two decades as the VICP's chief special master has publicly lamented: "[L]itigating causation cases has proven the antithesis of Congress's desire for the Program." (200) Below, I dissect the above contentions and identify what concrete lessons the VICP offers for health courts going forward.

   A Predictability Remains Elusive

   Predictability has long been touted as a prime advantage of judicial specialization. (201) And increasing the reliability and accuracy of medical liability judgments is inarguably key to health courts' appeal. (202) So, too, in the VICP. As the Vaccine Act was debated, predictability was prominent. Vaccine Act proponents criticized the tort system for its unpredictability. (203) They attributed the tort system's unpredictability to its reliance on "lay judgments." (204) And, they expressed faith that the VICP's predictability-promoting innovations--most prominently, a small set of specialized, experienced adjudicators and the Vaccine Injury Table (which mirrors ACEs, in many respects)--would "eliminate[] the tremendous discrepancies of injury awards under the tort recovery system." (205)

1. The VICP Experience

   Yet in reality, in the vaccine injury context, those innovations have fallen far short of expectations. A working group convened by HHS's Division of Vaccine Injury Compensation has acknowledged that "[t]he decisions of the Court are inconsistent." (206) The Program's long-serving chief special master has criticized the program for "inconsistent decision-making... even for similarly situated litigants." (207) And lawyers have also observed that VICP special masters sometimes decide cases differently. In an interview, I asked one prominent lawyer to identify the biggest challenge an attorney encounters while representing petitioners within the VICP. The lawyer replied: "The lack of consistency between special masters: When we file a case, we know that if we receive a particular special master, we're not going to win on the causation issue." (208) When the Federal Judicial Center conducted a survey of petitioners' counsel, it found much the same. For example, one lawyer complained that "outcome often depends on assignment," while another lamented that "the biggest factor in winning or losing a case in this program is which special master is assigned your case." (209)

   The one empirical study on the matter lends support to these anecdotal reports. In 1999, a researcher studied all published VICP opinions, yielding a dataset of 786 claims. He found significant variability when it came to the special masters themselves. Among those who had decided more than fifty claims, petitioners' success rate ranged from a low of 32.8% to a high of 65.8%. (210) This is surprising, since cases are usually randomly assigned. (211) There was also variability based on attorney representation; of the attorneys who had represented more than twenty claimants, claimants' success rates ranged from 37.9% to J2%. (212) All told, after crunching the numbers, the study concluded that, despite the VICP's many predictability-promoting innovations, "idiosyncratic differences among judges and litigators" continue to "influenc[e] the outcome of cases." (213)

2. Prospects for Health Courts?

   Will health courts--which have staked much of their success on their ability to "eliminate," or at least substantially reduce, decisional discrepancies--also disappoint when it comes to rationalizing compensation decisions? The answer, it seems, is almost certainly yes.

   1. Health Courts Face Additional Impediments

      The first reason health courts seem poised to disappoint is that theory concerning judicial specialization and decisionmaking suggests that the VICP ought to outperform health courts when it comes to reducing decisional disparities. Part of the reason is structural. According to Professor Stephen Legomsky, a leading expert on judicial specialization: All else equal, the fewer adjudicators there are in a given area, the more consistent their decisions, as "[i]t is easier to monitor and conform to the decisions of one's colleagues when they are few in number than it is when they are many." (214) Applying...