Why COVID vaccines remain outside the federal injury compensation court

For nearly four decades, a quiet federal court has been compensating Americans who say vaccines injured them. A person develops chronic arthritis after an MMR shot, or a shoulder becomes painful from a needle placed wrong during a tetanus vaccination—the Vaccine Injury Compensation Program, known as vaccine court, exists to handle these claims efficiently, without juries, without the need to prove negligence. Since its creation in 1986, roughly 13,000 people have received more than $5 billion through this system. But the more than 11,000 Americans who claim they were harmed by COVID-19 vaccines are locked out of it.

The story begins in the 1980s, when lawsuits over the DTP vaccine—an older formulation of what is now the DTaP—nearly destroyed vaccine manufacturing in America. Families successfully sued drug companies in civil court, and manufacturers began abandoning vaccine production, alarmed by legal exposure. Congress and public health officials recognized a crisis: without legal protection, companies would stop making vaccines altogether, leaving the country vulnerable. The response was the Vaccine Injury Compensation Program, a no-fault system funded by a 75-cent tax on every dose of recommended childhood vaccines. The program acknowledged that vaccines could cause injury while shielding manufacturers from liability. Cases are decided by one of eight special masters—judges who need only determine that an injury was more likely than not caused by the vaccine. The system expanded over time. When it began, six vaccines were covered. Today, 16 are listed, from seasonal flu to HPV protection.

COVID-19 vaccines sit outside this framework entirely. They remain covered instead by the Public Readiness and Emergency Preparedness Act, or PREP Act, established by Congress in 2005 to protect manufacturers and health workers during public health emergencies. People claiming serious harm can seek compensation through the Countermeasures Injury Compensation Program, or CICP—a far more restrictive administrative program. Where vaccine court allows three years to file a claim and compensates pain and suffering, the countermeasures program allows only one year and covers only severe injuries or deaths. The results speak plainly: as of June, more than 14,000 claims related to COVID countermeasures had been filed, with about 11,000 stemming from vaccines. More than 7,000 were denied. Only 109 were deemed eligible for compensation. Just 60 people had actually received money. The most common injuries compensated were cases of myocarditis.

Legal experts increasingly argue the COVID vaccines should be moved into vaccine court. Renée Gentry, a vaccine injury litigator and head of the Vaccine Injury Litigation Clinic at George Washington University Law School, put it bluntly: "Those people went out and did exactly what was asked of them to protect themselves, their communities, and their families. And they're basically being hung out to dry in the countermeasures program without any real compensation." For that to happen, three things would need to occur. The CDC would need to change its recommendation—it currently suggests COVID vaccines for people over six months based on individual choice, not as a universal childhood vaccine. Congress would need to pass an excise tax on COVID vaccines to fund the court. And the Secretary of Health and Human Services would need to add COVID vaccines to the Vaccine Injury Table. Robert F. Kennedy Jr., who holds that position, said in an email that he would accept CDC recommendations, including on COVID vaccines.

But there is a practical obstacle. The vaccine court is already strained. Eight special masters have adjudicated claims since the late 1980s, even as cases have multiplied. Adding thousands of COVID claims—10,000 unresolved cases already sit in the countermeasures program, with potentially tens of thousands more waiting—could overwhelm the system. The court's chief special master warned Congress last year that the court's "ability to resolve vaccine injury claims efficiently will be crippled" without more judges. Gentry echoed the concern: "Without any improved infrastructure, without any additional special masters, it's going to be crushing."

Retired special masters who have studied the question say the COVID vaccine belongs in vaccine court anyway. Denise Vowell noted that vaccines are medical interventions given to otherwise healthy people, and that rare side effects deserve compensation. George Hastings pointed out that the vaccine court was designed precisely for this: to compensate rare adverse reactions without forcing people into protracted litigation, keeping vaccines flowing. Vowell was more direct about the stakes. "Overall, the vaccine process has saved lives," she said. Walk through an old cemetery and count the children's graves. Walk through a modern one and the difference is stark. Vaccine-preventable diseases have not been conquered, but they have been contained. The question now is whether the system built to protect both vaccine makers and injured people can be extended to cover the vaccines that defined a generation's pandemic response—and whether it can do so without breaking under the weight.