Vaccines: Can I claim compensation if I suffer harm?
Adults, babies and children in South Africa and all over the world have been getting vaccines for many years. It is estimated that because of vaccines, five lives are saved every five minutes around the world.
Millions of people around the world have already started getting the COVID-19 vaccine. In South Africa healthcare workers are the first people to receive the vaccine with the goal of ensuring the health and safety of the workforce.
What is a COVID-19 vaccine?
A vaccine is intended to provide immunity against COVID-19. This means that it will help the body recognise the virus and also teach the body how to fight it. There is no active COVID-19 virus inside the vaccine so it cannot give a person the disease.
What steps are taken to ensure the COVID-19 vaccine is safe?
Vaccines undergo rigorous trials to ensure they are safe and effective. All vaccines go through a comprehensive approval process by medical regulators to ensure that they are safe. Pharmaceutical companies hand over all laboratory studies and safety trials to validate that the vaccine does work.
COVID-19 vaccines have gone through a prescribed testing process, including large trials that involved tens of thousands of people. These trials were designed to identify any common side effects or other safety concerns. Independent regulators also reviewed the efficacy and safety of the vaccines before they were approved for use.
How is the vaccine given?
You must get vaccinated by a trained healthcare worker at an accredited medical facility. The vaccine is given through an injection in your arm. Depending on what make of vaccine you receive, you might have to return for a second dose, but your healthcare worker will inform you when to do so.
What are the risks?
No medical intervention is completely risk free. Vaccines, though they are designed to protect from disease, can cause side effects that range from mild to serious. The most common side effects from vaccination are soreness, swelling, or redness at the injection site. Some vaccines are associated with fever, rash, and achiness. Serious side effects from vaccination are rare, but may include life-threatening allergic reaction, seizure, and even death.
Can I claim compensation if I suffer harm?
When vaccines first began to be widely used, people who experienced serious side effects from vaccination had little recourse to compensation from manufacturers, physicians, or the government.
As product liability law evolved during the 20th century, it eventually provided an avenue for compensation for individuals harmed by vaccines: they could sue a manufacturer for harm caused by an improperly made vaccine, or they could sue a physician for administering a vaccine when it was contraindicated. SAHPRA, the South African Health Products Regulatory Authority provides guidelines for the roll out of vaccines in South Africa.
In South Africa guidelines exist for damage caused during clinical trials of vaccines. It is likely that the same principles would apply should a vaccine be directly linked to serious harm. The Department of Health Good Clinical Practice (2006) guidelines require researchers and sponsors of clinical trials to take out comprehensive insurance against injury and damage that participants may experience as a result of trials. These guidelines give direction on the payment of compensation (from the insurers) for research-related injury. The guidelines specify that only damages for bodily injury may be claimed. The requirements are also that the harm must be serious and enduring (continuing).
The World Health Organisation has undertaken that it will pay out a lump sum for vaccine side effects from Covid-19 Covax program. According to the WHO, several “poorer” countries are part of the Covax program, which included South Africa. Applications could be made via a portal at www.covaxclaims.com from the 31st of March 2021.
Finance Minister Mr Tito Mboweni also announced during the 2021 budget speech that the Government will also put in place a no-fault compensation fund to cover claims in the unlikely event of any severe vaccine injuries.
Injury due to negligence
If your injury was the result of a medical product or medical practitioner’s negligence, you may be entitled to compensation for harm caused. Complications following medical care can be severe and determining the value and extent thereof is challenging. It is vital to appoint an attorney specialising in personal injury law and knows how to prove your case in court.
If you have any questions about a faulty product or negligent care and personal injury, feel free to contact Paul du Plessis Attorneys by phone 012 809 1588 or e-mail at paul@pauldup.co.za.
For more information visit these resources:
https://www.who.int/bulletin/volumes/89/5/10-081901/en/
http://www.sajbl.org.za/index.php/sajbl/article/view/211/231
https://www.historyofvaccines.org/content/articles/vaccine-injury-compensation-programs