UK: Compensation Awarded For Disablity Caused By MMR Vaccine

Last Updated: 25 October 2010
Article by Philippa Hayes

This article discusses the recent award made to a young man whose severe disabilities were found to have been caused by the MMR vaccine he was given as a baby. The implications of the decision and whether it could open the floodgates to numerous similar claims are considered.

For the first time since the controversial combined measles, mumps and rubella (MMR) vaccine came under scrutiny in 1998, when a now discredited doctor, Andrew Wakefield, linked it to autism, an 18-year-old man has been awarded financial compensation on the basis that the MMR vaccine directly caused his disabilities.

Mr Foster's case

Mr Foster received £90,000 after a medical appeal tribunal, chaired by a barrister sitting with Professor Sundara Lingam - a former consultant at Great Ormond Street Hospital - and Dr Adrian Allaway, ruled in August 2010 that he became severely disabled as a direct result of receiving the vaccine as a baby. He was perfectly healthy until he was given the vaccine at the age of 13 months, whereas he now suffers from frequent epileptic fits, is doubly incontinent and unable to stand, talk or feed himself and requires round-the-clock care.

Despite the Department of Health's continued insistence that there is no link between Mr Foster's disabilities and the MMR jab, two members of the tribunal ruled that his disabilities were a direct result of the vaccine. Professor Lingam dissented on the basis that Mr Fletcher was "genetically predisposed" to epilepsy, but was overruled by the other members.

Floodgates?

Many medical experts believe that this will open the floodgates for thousands of other MMR-related claims. Dr Malcolm Vandenburg, a medico legal expert, suggests that "one case like this makes other people think that they will be able to get a similar ruling. In the past, when there has been a first ruling of this kind, it has opened the door to others." Nadine Dorries, an MP sitting on the Commons Health Committee, suggests that, as the decision was reached by an independent panel "it is fair to assume that there could be as many as thousands of children and parents in the same position."

The first application made by Mr Foster's mother for compensation under the Government's Vaccine Damage Payment Scheme was refused in 1997 on the basis that the cause of her son's illness could not be proved. However, her appeal against that decision was upheld by the appeal tribunal on the basis that it could not be attributed solely to a coincidence that Mr Foster was a healthy baby who had a seizure 10 days after the vaccination and went on to become severely disabled.

The tribunal stressed that this decision should not be seen as a precedent for any other case, and the Department of Health was quick to point out that the decision was specific to the facts of the case. However, in the light of the experts' comments, it seems unrealistic to expect that other potential claimants will be willing to accept this.

The MMR group litigation

The public and media interest surrounding the MMR vaccine seemed to have all but disappeared following the withdrawal of public funding for the group litigation in 2005 and the end of the litigation in 2007. The Legal Services Commission originally granted public funding for the litigation and even had a £55,000 budget for research into the effects of the vaccine. However, the vast majority of medical evidence at the time suggested that the vaccine was safe when given to most children and causation was therefore extremely difficult to prove.

The Commission's decision to withdraw public funding from the litigation was likely to have been influenced by the arguments for and against the MMR vaccine in Re C (a Child); Re F (a Child) (Immunisation: Parental rights) [2003 EWCA Civ 1148]. In that case, two paediatricians gave evidence in favour of the vaccine's safety, whereas the case against it relied on the evidence of a GP cum homeopath, whose evidence was dismissed as "junk science". At the time, some commentators suggested that the few cases in which the claimants' disabilities could be shown to have been caused by the vaccine could be compensated on a "no fault" basis as is done in the USA.

The future

This re-emergence of the MMR controversy means that neither the NHS, nor insurers, nor defendant lawyers can afford to ignore the possibility of future claims and possible litigation. Since the previous litigation failed on causation and the tribunal in Mr Foster's case found a causal link between the jab and his disabilities, it would seem that there is now a basis upon which to found claims for disabilities of a similar kind to Mr Foster's. The Department of Health was quick to stress that Mr Foster's case in no way has any bearing on the alleged link between MMR and autism and this clearly represents a different set of disabilities. But those affected by disabilities (other than autism), which they believe to be a result of the MMR vaccine, may now have a good foundation on which to build their claim.

When the MMR group litigation was live, more than 20 case management conferences were held which cost around £21 million from public funds. Whilst it is unlikely that any litigation would reach such a large scale again (the fact that public funding will be unavailable could be a deterrent for many), some forward thinking on the part of defendant firms may be beneficial if the potential claims progress further. Planning a streamlined group litigation order, similar to that used for the "toxic sofa" litigation in 2010, may save a huge amount of money, particularly if the predictions of the experts are correct.

Mr Foster's mother described the £90,000 award as "derisory", and it is arguably a low sum when one considers the constant care that Mr Foster requires and the numerous adaptations to the Fosters' home which are needed to cater for his various disabilities.

The discrepancy between the effects of the damages and the sum awarded becomes more acute when one considers that the standard damages award for those compensated through the Government's Vaccine Damage Payment Scheme, through which Mrs Foster initially applied, is £120,000. However, when the potential number of individuals who may now be encouraged to formulate a claim for disabilities they say have been caused by the MMR vaccine are considered, the potential liability of the NHS trusts involved appears vast. If these claims came to fruition and the courts followed the lead of the tribunal in Mr Foster's case, deciding that a sufficient link exists between the claimants' disabilities and the MMR vaccine, it is likely to result in a huge number of compensatory payments. In those circumstances, the NHS trusts and their legal representatives managing the claims may be wise to implement some form of system for handling and negotiating the payouts for these claims.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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