[Congressional Record Volume 144, Number 146 (Wednesday, October 14, 1998)]
[Senate]
[Pages S12562-S12563]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. D'AMATO (for himself and Mr. Moynihan):
  S. 2632. A bill for the relief of Thomas J. Sansone, Jr.; to the 
Committee on Labor and Human Relations.


               private relief bill for tommy sansone, jr.

  Mr. D'AMATO. Mr. President, I rise today to introduce a bill for 
myself and for Senator Moynihan that will provide compensation under 
the National Vaccine Injury Compensation Program (VICP) to Tommy 
Sansone, Jr. Tommy was injured by a DPT vaccine in June 1994 and 
continues to suffer seizures and brain damage to this day. Tommy is the 
unintended and helpless victim of a drug designed to help him. He needs 
our help because while the Vaccine Injury Program is meant to make 
reparations for these injuries, it is hampered by regulations that 
challenges the worthiest of claims.
  Let me be clear, I am not advocating against our national 
immunization program. Vaccines are an integral part of our preventive 
health program, and in no way should we stop vaccinating our kids. 
However, in rare instances, a child will receive a shot designed to 
keep him safe from whooping cough or measles or other illness but react 
violently to the serum and end up crippled or sometimes killed. The 
answer is not to stop inoculating our children. We must review the 
program to ensure we provide our children with the greatest protection 
possible against the tragic diseases that older generations of 
Americans knew all too well, and we must review the Vaccine Injury Act.
  Back in 1986, Congress passed the Vaccine Injury Act to take care of 
vaccine injuries because the shots that we required our children to get 
were not as safe as they could have been. Since the program was 
established, more than 1100 children have been compensated. Over the 
first ten years, a great percentage of those with seizures or brain 
damage or other symptoms were recognized to be DPT-injured, and, they 
were summarily compensated. But, by 1995, the Institutes of Medicine 
(IOM) and others concluded that because the symptoms had no unique 
clinical profile, they were not necessarily DPT injuries. So, HHS 
changed the definitions of encephalopathy (inflammation of the brain), 
and of vaccine injury. Those new definitions had unintended 
consequences. Now, the program that we set up to be expeditious and 
fair, uses criteria that are so strict that the fund from which these 
claims are paid pays fewer claims than before and the fund has 
ballooned to over $1.2 billion. As a result, families of children like 
Tommy find it nearly impossible to win a claim against the Vaccine 
Injury Compensation Program. Most importantly, the program is failing 
its mission.
  Today, the Vaccine Injury Compensation Program is seen as a Fort Knox 
of government funds that not even the worthiest claim can access 
without a high-priced lawyer to guide it through a labyrinth of 
bureaucratic regulations. It is no longer the ``no-fault compensation 
program under which awards can be made to vaccine-injured persons 
quickly, easily, and with certainty and generosity,'' as we originally 
intended in 1986.
  To be clear, VICP is not a medical insurance policy. The program is 
not designed to take care of those who cannot get or receive care. VICP 
is a compensation program, where the government makes amends for a 
failure in the system that it established. Claims are paid from a trust 
fund established from surcharged that are paid on each shot a child 
receives. The fund serves as an insurance policy against vaccine 
injuries. But, following the regulatory changes made in 1995, the 
government is not recognizing even the most legitimate of claims. We 
are failing the very children we are trying to protect.
  Senator Jeffords, the chairman of the Senate Labor Committee and I 
have commissioned the GAO to study the vaccine injury program. We asked 
them to examine the overall operation and effectiveness of the Vaccine 
Injury Compensation Program and the National Vaccine Program. They will 
look at how revenues in the compensation fund are being managed and 
dispersed and whether vaccine injury claims are reviewed and processed 
in a fair and timely manner. They will look for those barriers, if any, 
that petitioners face in proving vaccine-related injuries. We've asked 
them to look into how well information about vaccine safety and 
injuries is collected, maintained and distributed, and to recommend 
changes (legislative or regulatory) to improve the Vaccine Injury 
Compensation Program and the National Vaccine Program. We want to fix 
VICP for children nationwide who needlessly suffer twice at the hands 
of the federal government; once with an adverse reaction to a vaccine 
they are required to receive and a second time when they cannot hold 
the federal government liable for their pain and suffering. But, there 
is something we can do now. We need to take care of this little guy, 
Tommy Sansone, Jr.
  Over the years after his DPT shot (the combined shot for diphtheria, 
pertussis and tetanus), Tommy suffers severe seizures and from brain 
damage that has hampered his mental development. When he wakes in the 
morning or from a nap, either his mother or father is at his side 
waiting for the inevitable. Tommy's eyes tear and his face cringes in 
agony as his entire body is wracked with a muscle-clenching seizure. 
His parents hold him helplessly

[[Page S12563]]

until the seizure subsides, sometimes for as long as five minutes. 
Tommy will then look into his mother's loving eyes, and say, ``No more, 
mommy. Make them stop.''
  At the very least, Tommy's parents know that the strain of vaccine 
used on Tommy is now being phased out because of the rash of adverse 
reactions it caused. But, this does nothing for Tommy or his parents 
who have been in and out of countless hospitals, and consulted with 
doctors and experts at the Centers for Disease Control and the Health 
Resources and Services Administration. Their claim for compensation was 
dismissed in the Federal Court of Claims, but they and Tommy's doctor 
feel (and I agree with them) that they should have known more about the 
potential dangers of the DPT vaccine that Tommy received on June 1, 
1994. No one told them that there was a chance that the DPT vaccine 
could cause such trauma. No one told them about ``hot lots,'' an 
unofficial team for a batch of shots that has had an abundance of 
adverse reactions. The lot that Tommy received is known to have had 44 
such reactions from March-November 1994, including 2 deaths. These are 
reactions beyond the short-lived fever and rashes that accompany many 
vaccines. Their doctor didn't know about the availability of the 
``new'' acellular strain of pertussis vaccine that is replacing the 
whole cell version that has been used since the 1930s. Sure, it costs a 
couple of dollars more, but who wouldn't choose that for their child--
given the choice?
  Tommy's claim would have been covered before the 1995 changes, but 
that is not the case any longer. He's the victim of a bad DPT vaccine, 
yet his case continues to be denied because the first seizure didn't 
occur within 72 hours of the shot. It occurred 18 days later, and he 
suffers to this day. Tommy also has brain damage (encephalopathy) 
because of the DPT shot, but it doesn't fit that new definition either. 
He cried and moaned at a shrill pitch from the moment of the shot until 
his first seizure, but that doesn't matter either. For the first six 
months of his life, tommy was in all ways normal, but for 4 and a half 
years since the DPT vaccine he and his family have suffered. As a 
parent and grandparent, I would do anything to protect my family from 
such pain and suffering. Tom Senior has done everything he knows how to 
help his son. Now he has turned to me because he knows I am in a 
position to help and I will not relent in my pursuit of relief for the 
Sansone family. The Vaccine Injury Compensation Program should take 
care of Tommy, but it doesn't. This bill will enable us to ensure that 
it does.
  Mr. President, I ask unanimous consent that the text of the bill be 
printed in the Record.
  There being no objection, the bill was ordered to be printed in the 
Record, as follows:

                                S. 2632

       Be it enacted by the Senate and House of Representatives of 
     the United States of America in Congress assembled,

     SECTION 1. COMPENSATION FOR VACCINE-RELATED INJURY.

       (a) Cause of Injury.--In consideration of the petition 
     filed under subtitle 2 of title XXI of the Public Health 
     Service Act (42 U.S.C. 300aa-10 et seq.) (relating to the 
     National Vaccine Injury Compensation Program) by the legal 
     representatives of Thomas J. Sansone, Jr., including the 
     claims contained in that petition that the injury described 
     in that petition was cause by a vaccine covered in the 
     Vaccine Injury Table specified in section 2114 of such Act 
     (42 U.S.C. 300aa-14) and given on June 1, 1994, such injury 
     is deemed to have been caused by such vaccine for the 
     purposes of subtitle 2 of title XXI of such Act.
       (b) Payment.--The Secretary of Health and Human Services 
     shall pay compensation to Thomas J. Sansone, Jr. for the 
     injury referred to in subsection (a) in accordance with 
     section 2115 of the Public Health Service Act (42 U.S.C. 
     300aa-15).
                                 ______