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Even the most carefully developed and tested vaccine can lead to injuries. Such injuries can disproportionately affect vulnerable populations who are most in need of vaccinations but are also at risk of financial ruin if harmed by a vaccine. Fortunately, injured parties can usually recover expeditiously through the National Vaccine Injury Compensation Program (VICP), which has no damages cap. In the case of many injuries, causation is presumed if a claimant’s symptoms arise within a certain time, leaving only the amount of damages in question. By contrast, individuals injured by a vaccine approved under an emergency use authorization (“EUA”) can access compensation only under the Countermeasures Injury Compensation Program (CICP), which is far less generous and accessible. It compensates only the most serious injuries, requires a higher burden of proof, has a one-year statute of limitations from the date of vaccination, and limits damages awards. During a pandemic, such as COVID-19, vaccines are likely to be approved under an EUA. This chapter highlights the absence of VICP compensation for vaccines with an EUA and analyzes its ramifications for disadvantaged populations. The chapter also proposes legal changes to rectify this wrong. One is an amendment to the PREP Act that would add vaccines with an EUA to the VICP. The second is an entirely new vaccine fast-track approval process that would keep these vaccines in the VICP and would ensure that sufficient data is generated from clinical trials to allow the vulnerable to make informed vaccination choices.
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