With indecent haste, the government has published a draft regulatory amendment to establish a Covid-19 No-Fault Compensation Scheme, under which the government will be exclusively liable for injuries claimed to be caused by Covid-19 vaccines.
Such was the haste, that the invitation to comment by the Minister of Cooperative Governance and Traditional Affairs, Nkosazana Dlamini-Zuma, published on Friday 16 April, set a deadline of Monday 19 April.
And such was the haste, that the invitation to comment contains a link to the proposed regulatory amendment hosted on the Department of Health’s website, but the amendment is nowhere to be found in the weekly National Government Gazette of 16 April 2021, nor in the weekly National Regulation Gazette of the same date, and nor does it appear as a separate Gazette.
It is unclear whether it has any legal status at all, in fact, but for the sake of argument let’s suppose that my ability to find government documents is sorely deficient and assume that the draft regulatory amendment actually has a legal existence.
The public interest lobby group Dear South Africa has sent a legal letter to the minister requesting for a comment period of at least three weeks, since, it argues, the four-day period could not give adequate effect to the constitutionally protected principle of public participation. It is quite right, of course.
R250 million fund
The amendment provides for a fund, administered by the Department of Health, from which people who claim to have been injured or harmed by receiving any of the approved Covid-19 vaccines can seek compensation.
It indemnifies everyone in the vaccine supply chain, from the pharmaceutical company to the hospital to the individual vaccinator, no matter their actual conduct, and makes the government vicariously liable for all injury claims.
The fund will only cater for people who received vaccines ‘procured and distributed by the National Government’, which further entrenches the monopoly on Covid-19 vaccines the government swore high and low it wasn’t claiming.
Health minister Zweli Mkhize has told the media that the fund will have access to R250 million in order to settle an estimated caseload of between 800 and 2 000 successful claims. That would make each anticipated claim worth between R125 000 and R312 500, on average. That’s a lottery I’m more than willing to buy into.
Since every claim will have to be adjudicated by a panel of experts, and is subject to appeal to another panel of experts, both of which must find sufficient evidence that the vaccine actually caused the claimed injury – and not merely that the injury happened post hoc – the minister’s anticipated number of successful claims seems unduly pessimistic.
Very, very few serious side-effects have been reported worldwide, after all, and while in some cases the vaccine seems likely to be the cause, I cannot recall seeing any cases in which the vaccine was convincingly proven to be the cause.
Pharma firms’ indemnity
Be that as it may, there are serious defects to the compensation fund idea, in principle. The most obvious is that it makes taxpayers liable for claimed vaccine injuries resulting from the decisions of others.
It would be easy to argue, and it commonly is, that vaccine makers should be liable for vaccine injury compensation, instead. This might seem reasonable, but it is not.
There is good reason for indemnifying pharmaceutical companies for the side-effects of the drugs they sell, provided that they have completed adequate trials, have fully disclosed the likelihood and nature of side-effects, and have in all other respects satisfied medicine regulators that their product is sufficiently safe and effective to be sold for a given purpose.
All medicines have side-effects. Side-effects differ in different people, with different genetics, at different ages, with different medical histories, and different concurrent medicine use. There is no way pharmaceutical companies can be held liable for these side-effects, unless it can be shown that they have been negligent or that they have made themselves guilty of deliberate malfeasance in the trials and approval process.
If they were to be held liable for anticipated side-effects, nobody could afford to get into the business of producing real medicine, and we’d all have to go back to a world of blood-letters, herbalists and witches.
The case of Merck’s pain medication Vioxx, for example, which was withdrawn from the market in 2004, was not so much about the discovery of increased risk of stroke and heart attack with long-term, high-dose use. It was about the fact that Merck knew about this risk, but for over five years withheld the information from doctors and patients. It wasn’t the information, but the withholding of it, that established liability in a flood of class-action lawsuits against the company.
So it should be with vaccine makers. That vaccines can have side-effects is not in dispute. That they can, in rare circumstances, be serious, is also not in dispute. None of this gives rise to liability, however, unless the company was not diligent in testing their product, or withheld material information that would have influenced the regulator’s approval processes.
Trading greater risk for lesser risk
The very name of the fund implies that in cases of vaccine injury claim, ‘no fault’ is assigned to anyone.
The idea of no-fault compensation is familiar from worker’s injury compensation schemes. However, the worker’s compensation fund is funded by employers, and operates as a mandatory insurance scheme.
In this case, the taxpayer would be on the hook for compensation, which raises the question: if nobody is at fault, why is compensation warranted in the first place? And why should taxpayers cough up for it?
The reality is that getting vaccinated reduces one’s risk, compared to the risk of contracting Covid-19, which can have serious long-term physical and mental health complications, up to and including death.
The great irony with this scheme is that if someone believes the risk of getting vaccinated is higher than the risk of contracting Covid-19, and they get sick with Covid-19 anyway, the taxpayer would likely be on the hook for the consequences, too.
I have a far better proposal. Let’s trade the greater risk for the lesser risk. Let’s use taxpayer money to compensate those who can prove that they were injured by vaccines. Compensate them handsomely, even. Then, to make things fair, let’s deny taxpayer-funded healthcare to people who, without valid medical reasons, choose not to get vaccinated but go on to contract Covid-19. Let them pay the price for their own bad decisions.
That’s the kind of compensation and incentive scheme I can get behind.
1st published on the Daily Friend. The views of the writer are not necessarily the views of the Daily Friend or the IRR, or Newsi