Whether or not drug companies really need a liability shield is concealed in their proprietary balance sheets. But there aren't many companies that can make pandemic flu vaccines, and history has shown that they just won't make them unless we provide this shield. In 1976, President Ford ordered mass immunization following the detection of the "swine flu" influenza virus in an Army recruit who died from it. That year, production of the vaccine was delayed several months because the drug industry could not get insurance. Congress finally underwrote the campaign, and the insurance industry turned out to have been right—the vaccine was associated with an unusual paralytic disease called Guillain-Barré syndrome. The federal government had to handle 5,000-plus claims from allegedly vaccine-injured patients and paid out nearly $100 million in compensation.
[...] But Congress' treatment of pandemic flu vaccine makers takes risk-protection to an excessive level. The bill would make it impossible to sue a vaccine or antiviral drug-maker without proof of "willful misconduct." This will be almost impossible to prove, because the bill stipulates that any claim of injury would be adjudicated not by judges, with their investigatory powers, but by the secretary of the Department of Health and Human Services. The bill protects companies without establishing a fund to pay potential vaccine victims. This is not a reassuring decision, and since vaccination programs rely on public trust, it is a remarkably shortsighted one. Even drug company officials were worried that the measure could further harm their reputation and diminish confidence in vaccines. Apparently, however, House budget hawks were adamant that the bill contain no compensation provision that costs money and thus adds to the federal deficit.
Flu vaccines today are safer than they were in 1976. But it should be the duty of experts on vaccine safety, and not HHS Secretary Mike Leavitt, to decide whether a bad outcome after vaccination was caused by the vaccine. In the battle against dangerous bugs, our troops—which is to say, ourselves—deserve better.
Read the full Arthur Allen article on Slate.com.