posted on 2009-12-08 by tobbysims
By ALAN SHANOFF

Last month I argued if the government wants us to get vaccinated for the H1N1 flu it ought to stand behind the vaccine and provide compensation to those who suffer severe adverse reactions.

Since then, there's been silence from both levels of government, yet full-page newspaper advertisements exhorting the public to get the flu shot have continued.

More troublesome is the report of a higher than expected number of severe allergic reactions, resulting in a recall of about 170,000 doses. By late November about two dozen Canadians were said to have suffered a severe reaction. By that, I mean anaphylaxis, a severe allergic reaction that can be life threatening.

I'm no alarmist and I don't want to discourage anybody from getting the flu shot. The risk of a serious adverse event is still only about 1 in 100,000, and the risks of serious harm from the flu are much higher. But if our governments won't stand behind the vaccine and provide compensation for serious adverse reactions aren't their ads misleading?

I understand providing compensation is controversial. Some readers question who will pay for a compensation scheme. They don't want additional government expenses or taxes.

No problem. Instead of the vaccine manufacturers paying for liability insurance, let them set aside a loonie or two per dose for a compensation fund.

One reader complained bad things happen to people all the time and we can't provide compensation for every injury suffered. After all, many people suffer injuries for all sorts of reasons and we don't expect the government to provide compensation.

I know life isn't fair and some injuries will go uncompensated. But here we're talking about people who suffer severe reactions after having taken the advice of the government. Getting vaccinated is supposed to be for the greater good of society.

And just because some injuries go uncompensated doesn't mean severe vaccine reactions should go without compensation. Also, compensation need not be gold plated. It need only be fair.

NEARLY IMPOSSIBLE TO SUE

We wouldn't need a government-run compensation scheme if our laws made it easier to successfully sue over these adverse reactions. But successfully suing is all but impossible.

We're supposed to be informed of any material risk of a medical procedure. Doctors and nurses injecting any vaccine are supposed to disclose all material risks of the vaccine. They need not disclose "mere possibilities" but they must disclose any risk of a severe consequence.

Yet even if no disclosure is made of the remote possibility of an anaphylactic shock or death the doctor or nurse and their employer will escape liability. That's because the courts will excuse a lack of disclosure if they believe "a reasonable person" in the plaintiff's circumstances would have agreed to receive the vaccine if proper disclosure had been made.

Using this test a court will almost always conclude any plaintiff, acting reasonably, would have agreed to receive the vaccine even if the remote possibility of a severe reaction had been disclosed.

It's rather odd. You are entitled to full disclosure but if you didn't get full disclosure you still lose. Should the injured person decide to sue the manufacturer he'll be met with even more difficult legal defences.

IT CAN BE DONE

If other countries and Quebec have implemented a no fault compensation plan for serious adverse reactions then surely the rest of Canada should be able to do the same. Why should an Ontario resident who suffers a serious reaction not be entitled to compensation available to a Quebec resident?

We can't compensate people for every injury they suffer but surely an injured person shouldn't be ineligible just because they live on the wrong side of the provincial border.

ALAN.SHANOFF@SUNMEDIA.CA

source: http://www.torontosun.com/comment/columnists/alan_shanoff/2009/12/06/12055331-sun.html