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Vaccine Shortages, Distribution Delays Point to Liability Limits

Jan. 29, 2021, 10:26 AM

Peter Meyers got his first dose of the Moderna Inc. coronavirus vaccine Jan. 14, but he doesn’t know when he’ll be able to get his second shot.

The emeritus professor at George Washington University Law School and former director of its Vaccine Injury Litigation Clinic didn’t get an appointment time from the Washington Senior Wellness Center to come back for his second dose in 28 days. Meyers, 74, will have to try to secure another appointment online, which was a frustrating process the first time around.

Because vaccine supply is limited and distribution has been chaotic, there’s concern people won’t be able to get their second dose of the vaccine in the recommended 21- or 28-day time frame, depending on which vaccine they received. There are federal compensation programs in place to help people who are physically harmed by a vaccine, but those weren’t created to address this type of problem. The nation’s legal system isn’t set up to hold anyone liable for this type of distribution failure.

There’s no lawsuit or compensation program anyone can bring a claim in for failure to get a second dose in time, Meyers said. “Nobody is at fault by not getting you the second shot.”

More Flexibility

Federal officials have stressed the second dose must be administered at the correct interval to get the highest level of protection from Covid-19. The Centers for Disease Control and Prevention, however, recently updated its guidance to say the four-week window could be stretched to six weeks (42 days) if it’s not feasible to adhere to the recommended interval.

But Anthony Fauci, director of the National Institute of Allergy and Infectious Diseases, warned Jan. 25 that deviating from the vaccine schedule could create risks for infection given the new Covid-19 variants.

“CDC still recommends that people get their 2nd dose of COVID-19 vaccine as close to the recommended interval as possible (3 weeks for Pfizer-BioNTech, one month for Moderna),” Kristen Nordlund, a CDC spokeswoman, said in an email.

Nordlund said the CDC was just trying to provide more flexibility.

“We are not recommending this as a strategy to allow more people to get 1st doses, but rather to address feasibility issues,” she said.

State by state and distribution site by distribution site, public and private entities have taken different approaches to ensure second doses are administered, said Lindsay Wiley, director of the Health Law and Policy Program at American University Washington College of Law.

“In some places when you go for your first dose, they hand you a slip of paper that says, ‘Here’s your appointment for your second dose,’” she said. “In other places they are saying, ‘You are in our system. We will reach out to you at some undisclosed time to allow you to come into the system to schedule a second dose,’ which seems to suggest second-dose patients will not be competing in the same pool as people seeking a first dose.”

The Biden administration recently announced plans to purchase 100 million more doses of both the Pfizer Inc. and Moderna vaccines. A senior administration official told reporters Jan. 26 that the federal government does not have a significant inventory of shots on hand.

That means some people will have to try to win another lottery for a vaccine appointment.

“I will not be at all surprised if we hear a lot of stories from people who are not able to get their second dose right on time,” Wiley said.

Hard to Prove

Federal and state governments have sovereign immunity, which protects them from being sued, and in passing the Public Readiness and Emergency Preparedness Act, Congress shielded anyone who manufactures, distributes, or administers the vaccine from being sued.

But even if those protections weren’t in place, attorneys and health scholars said it would be almost impossible for anyone who failed to get their second dose to bring a personal injury lawsuit against the doctor, pharmacy, or health department that administered the vaccine.

“It would be very difficult to show that if you got Covid-19 between shot one and a delayed shot two that that would have been prevented but for timely shot number two,” said Jim Chalat, a senior trial lawyer at Chalat Hatten & Banker PC, a personal injury law firm in Denver.

For there to be liability, there has to be an injury and that injury has to have been caused by wrongful conduct that was either negligent or intentional, Meyers said.

“Nobody is at fault either negligently or intentionally by not being able to get you the second shot,” he said. “The clinic didn’t promise me that I’d get a second shot.”

A person might have a claim to damages, however, if some sort of outrageous conduct delayed the second dose of a vaccine. If vaccines are going out the back door as a result of bad management, that could be a claim, Chalat said.

Even if the second dose is administered beyond the four-week and six-week intervals, there is no need to restart the vaccine series, the CDC said. But the agency noted there is limited data on the efficacy of Covid-19 vaccines given beyond this window.

Meyers isn’t giving up. Getting the shot is too important.

“I’m persistent,” he said. “I will keep going back and back and back until it happens.”

To contact the reporter on this story: Lydia Wheeler in Washington at lwheeler@bloomberglaw.com

To contact the editors responsible for this story: Fawn Johnson at fjohnson@bloombergindustry.com; Karl Hardy at khardy@bloomberglaw.com

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