Markovich v. Secretary of Health and Human Services: an Ounce of Cure for a Pound of Prevention

• Publication year: 2008
• Citation: Vol. 10 No. 2008

J. Hunter Appier⁰

There's an old saying that "an ounce of prevention is worth a pound of cure." Vaccinations seem to exemplify this, allowing people to avoid diseases entirely by submitting to a simple injection, rather than forcing them to worry about the more difficult alternative of treating the disease once it is contracted. Markovich v. Secretary of Health and Human Services is a case in which an infant suffered severe injuries resulting from a vaccination. To address such rare situations, the National Childhood Vaccine Injury Act establishes a system through which injured parties may recover medical costs from the government. This Recent Development examines a failure of that system to serve its intended purpose. It looks at ways in which the court's decision in Markovich runs counter to the policies underlying the creation of the system. It also considers the court's erroneous interpretation of statutory language and the injustice of denying compensation to infants injured by vaccines that results from this misapplication. Markovich illustrates how the few children injured by vaccines may be offered precious little financial restitution for the unintended consequence of a technology that keeps the rest of us healthy.

I. Introduction

The vaccine is one of the greatest discoveries of medical science. As a preventative medical procedure,¹ vaccines are able to spare society the dire ramifications of epidemics² in exchange for the small personal burden of a trip to the doctor and a needle-stick. However, in a minority of cases, the patient may suffer a serious adverse physiological reaction to the vaccination.³ In these instances, the burden borne by the individual becomes enormous.⁴ When the legal mechanism developed to provide relief to these affected persons falls short of achieving its compensatory goals, the proper functioning of the vaccination program as a whole is threatened.

In 2007, the United States Court of Appeals for the Federal Circuit⁵ decided Markovich v. Secretary of Health and Human Services,⁶ a case that had arisen in the "vaccine court"⁷ under the U.S. Court of Federal Claims. The decision affirmed the holding of the special master,⁸ which denied the action of the petitioner due to the expiration of the statute of limitations under the National Vaccine Injury Compensation Program ("VICP")⁹ of the National Childhood Vaccine injury Act ("NCViA").¹⁰ The court accepted the government's position that the three-year statute of limitations,¹¹ controlling the time during which a petitioner may bring suit for damages resulting from vaccine-related injuries, had been triggered by an objective, not a subjective, indicator.¹² This holding is an unfortunate misstep in NCVIA jurisprudence.

By finding that an objective measure¹³ of injury triggers the statute of limitations,¹⁴ the court undermined the intent of Congress to create a "user-friendly" vaccine-injury recovery system that supplements traditional tort litigation.¹⁵ This decision threatens public interest goals, with consequences reaching beyond the parties that bring suit; it impacts both the broader purpose of the NCVIA to act as an attractive alternative to tort litigation and the place of vaccination in public health strategy.

Part I of this Recent Development summarizes the history of the NCVIA and the Markovich decision. Part II, subpart A, explains the petitioner-friendly nature of the VICP in light of certain features of the vaccine court proceedings and the NCVIA's legislative history. It argues that by limiting the Markoviches' ability to recover, the court's decision stands in conflict with the VICP's purpose. Subpart B looks at the text of the VICP's statute of limitations and argues that the court's incorrect understanding of the word "symptom" led to a misapplication of the statute.

II. History and Context of the NCVIA and the Markovich Decision

During the 1980s, a large number of lawsuits¹⁶ filed against the makers of the DTP vaccine¹⁷ caused an increase in the price-per-dose¹⁸ of the vaccine and forced its makers to withdraw from the market.¹⁹ Congress sought a solution to "stabilize the supply of childhood vaccines and restore public confidence in the Childhood immunization Program."²⁰ Public health officials expressed concern that the decreasing confidence in vaccinations, coupled with their increasing price, would threaten "herd immunity."²¹ In response, Congress passed the National Childhood Vaccine Injury Act which contained provisions establishing the National Vaccine Injury Compensation Program.²² Under the VICP, patients injured by the administration of a vaccine²³ may bring suit against the government in vaccine court.²⁴ Successful petitioners can recover the costs associated with their injuries²⁵ from a Vaccine Injury Compensation Trust Fund,²⁶ which is funded by a tax on vaccines.²⁷

Michael and Melissa Markovich exemplify typical parents seeking relief under the VICP for an injured child. They brought an action for compensation on behalf of their two-month-old daughter, Ashlyn,²⁸ who received the DTaP, polio, and Haemophilus influenzae type b vaccinations, on July 10, 2000.²⁹ Later that day and in the weeks that followed, the Markivoches observed their daughter blinking her eyes rapidly, an action they did not recognize as symptomatic of any possible illness but only a sign of fatigue.³⁰ On August 30, 2000, Ashlyn suffered her first grand-mal seizure.³¹ Ashlyn continued to have seizures, which caused her parents to seek the opinions of several doctors.³² In January 2002, a neurologist diagnosed Ashlyn as having had "four types of seizures: (1) repeated eye blinking; (2) clonic movement of the face, arm, and leg; (3) generalized seizures with or without focal onset; and (4) partial motor seizures."³³

The Markoviches filed their VICP petition on August 29, 2003, two years and three-hundred-sixty-four days after the date of Ashlyn's first grand-mal seizure but three years and fifty days after the date of Ashlyn's vaccination and first eye-blinking episode.³⁴ The special master presiding over hearing the case held that Ashlyn's eye-blinking seizure was the first symptom of injury, thus triggering the three-year statute of limitations.³⁵ As a result, the special master dismissed the Markoviches' action.³⁶ The Court of Federal Claims³⁷ and the Court of Appeals for the Federal Circuit affirmed this decision.³⁸

The Markoviches filed their petition for relief within three years of Ashlyn's first grand-mal seizure.³⁹ This seizure marked the first time the Markoviches recognized that their daughter was having a possible reaction to the vaccinations and, consequently, it was the first time they might have had a reason to seek recovery.⁴⁰ The court disagreed and held that the eye-blinking episode on July 10, 2000, was the first event that medical science could consider an indication of injury; therefore, this event triggered the beginning of the three year statute of limitations.⁴¹ By filing their petition three years and fifty days after July 10, 2000, the Markoviches missed their opportunity to recover.⁴²

III. Erroneous Policy and Interpretation

A. Undermining the Goals of the NCVIA

The position on the statute of limitations espoused by the special master and the reviewing courts is disconcerting in that it hinders the goals that Congress, through the NCVIA, sought to achieve.⁴³ one of these goals was the creation of a compensatory system for victims of vaccine injuries that was favorable to petitioners, rather than use the system of tort litigation.⁴⁴ This important goal has been recognized by courts hearing NCVIA cases.⁴⁵

Congress framed the NCVIA in several ways to be particularly favorable to petitioners. For example, Congress provided an accelerated processing time for claims under the VICP, which operates more quickly than does the tort system.⁴⁶ Adding another advantage for petitioners, Congress instituted a relaxed protocol regulating the introduction of evidence before the special master,⁴⁷ which does not require compliance with the complex Federal Rules of Evidence.⁴⁸ Also, petitioners are not required to produce proof of actual causation for certain claims.⁴⁹ The NCVIA incorporates a "Vaccine Injury Table," which describes possible links between certain vaccinations and injuries that could result from them.⁵⁰ If a petitioner proves that he or she suffered an injury within the predicted time period listed in the table, then the petitioner creates a rebuttable presumption that the vaccine caused the injury.⁵¹ Even if the petitioner is unable to make such a showing, he or she may independently demonstrate that the vaccine actually caused the injury.⁵² Regardless, the VICP often provides some form of compensation, even if the petitioner is unsuccessful in proving a claim on the merits.T⁵³ For instance, unsuccessful petitioners whose claims are reasonable and made in good faith may recover attorneys' fees and expenses.⁵⁴ In comparison, successful petitioners can recover further damages, including certain costs associated with the injury,⁵⁵ reasonable attorneys' fees,⁵⁶ and petition expenses.⁵⁷ In the case of death resulting from a vaccination, the estate may be compensated for the death.⁵⁸ Finally, bringing an initial suit in the VICP has additional advantages for petitioners because the petitioners may institute a tort claim even after losing on the merits before the special master.⁵⁹ These explicit, petitioner-friendly features of the VICP go further than any mere statements made in committee hearings⁶⁰ in evincing a Congressional intent to make the VICP a simpler, quicker, and more favorable system than civil tort litigation for victims of vaccine injury.

However, the Markovich court's holding that the statute of limitations accrues upon the occurrence of indicia that would be recognized as evidence of an injury by the medical profession undermines the spirit of the NCVIA. As previously discussed, one purpose...