- The Washington Times - Saturday, November 23, 2002

This week, a small but highly significant measure concerning smallpox liability was passed as a part of the homeland-security bill. The provision, which gives a measure of legal protection to both those who administer and those who make the vaccine, was another important step toward the hoped-for goal line of allowing all Americans access to the smallpox vaccine.

The liability provision follows the common-sense trajectory that the Bush administration has taken in dealing with the terrible potential of a smallpox attack. It does not (as critics allege) take away the right to sue from those who might suffer adverse health consequences as a result of taking the vaccine. Rather, as Tennessee Sen. Bill Frist pointed out, the amendment simply channels such complaints through the no-fault Vaccine Injury Compensation (VIC) program. After that, if the matter is not resolved to the plaintiff's satisfaction, he or she still has the right to sue, with no financial limits put on potential liability.

It isn't surprising, though, that trial lawyers didn't like the amendment. Individuals given the smallpox vaccine face a small risk of adverse side effects, and so the payoffs from lawsuits stemming from a nationwide vaccination program could be vast. However, without such provisional protection, fear of punitive damages could have kept health professionals from providing the vaccine even during a smallpox attack. It was a point reiterated several times by Mr. Frist, who said in a statement on the floor of the Senate, "The threat of liability should not become a barrier to the protection of the American people."

Unfortunately, the American people are on the front lines of the ongoing struggle against terrorism. Thanks to the efforts of Mr. Frist and his like-minded colleagues in Congress, they just received another layer of protection against the threat of smallpox. Now, the Bush administration can grant access to the best armor available against such a weapon voluntary smallpox vaccinations.

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