In Sullivan v. Holy Redeemer Hospital, et al., 2021 PA Super 191, the Pennsylvania Superior Court determined that Pennsylvania did not have subject matter jurisdiction for claims arising out of the National Childhood Vaccine Injury Act of 1986 (the Vaccine Act), 42 U.S.C.§§ 300aa-1 to 300aa-34.
Plaintiff Lisa Sullivan worked at Holy Redeemer Hospital (“HRH”). In June 2017, after exposure to human tissue and blood, she received a tetanus vaccine at HRH’s Emergency Department. The tetanus vaccine was injected into the subacromial bursa of her left shoulder. Thereafter, Lisa experienced severe burning and tingling pain in the back of her shoulder and her neck immediately after the shot, which caused her to receive medical treatment through 2017, 2018 and into 2019.
In April of 2019, Lisa sued HRH, alleging its agents were negligent in their injection of the tetanus vaccine and that the negligent administration of the vaccine caused her to suffer various shoulder injuries and reflex sympathetic dystrophy syndrome (RSD). HRH claimed that Lisa’s claim was barred by the Vaccine Act’s provision, 42 U.S.C. § 300aa–11, that prohibits actions for damages exceeding $1,000 for vaccine-related injuries unless the plaintiff has first filed a petition for compensation under the National Vaccine Injury Compensation Program (the Program) and exhausted her remedies under the Program. HRH later filed a motion to dismiss Lisa’s claim. The trial court denied HRH’s motion, and HRH appealed to the Superior Court.
The Vaccine Act was enacted in 1986 and provides a federal administrative compensation program outside traditional tort law for vaccine injuries. Ashton v. Aventis Pasteur, Inc., 851 A.2d 908, 910 (Pa. Super. 2004). The United States Supreme Court has described the Vaccine Act as covering “injuries and deaths traceable to vaccinations” and claims that “damages resulted from a vaccination.” Shalala v. Whitecotton, 514 U.S. 268, 269-70 (1995). A person who claims to have suffered an injury after receiving a vaccine covered by the Vaccine Act may obtain compensation from the Program without proving any negligence or defect either by proving that the vaccine caused the injury or by demonstrating that her injury is an injury listed as associated with that vaccine in the Vaccine Injury Table created under the Vaccine Act, which creates a presumption of causation. 42 U.S.C. § 300aa– 11(a)(1), (c)(1)(C); 42 U.S.C. § 300aa–13; Shalala, 514 U.S. at 270-71. The Vaccine Act applies both to claims against vaccine manufacturers and to medical malpractice actions against health care providers who administered a vaccine that it covers where the action asserts a claim for a “vaccine-related injury.” 42 U.S.C. § 300aa–11(a)(2)(A); Harman v. Borah, 720 A.2d 1058, 1060-64 (Pa. Super. 1998).
The Vaccine Act provides in Section 300aa–11(a):
(2)(A) No person may bring a civil action for damages in an amount greater than $1,000 or in an unspecified amount against a vaccine administrator or manufacturer in a State or Federal court for damages arising from a vaccine-related injury or death associated with the administration of a vaccine after October 1, 1988, and no such court may award damages in an amount greater than $1,000 in a civil action for damages for such a vaccine-related injury or death, unless a petition has been filed, in accordance with section 300aa-16 of this title, for compensation under the Program for such injury or death…
(B) If a civil action which is barred under subparagraph (A) is filed in a State or Federal court, the court shall dismiss the action.
The Superior Court determined that Lisa was a person “qualified to file a petition for compensation under the Program.” 42 U.S.C. § 300aa–11(a)(9). The tetanus vaccine was listed in the Vaccine Injury Table. 42 C.F.R. § 100.3(a). She received the vaccine in the United States; her injuries are set forth in the Vaccine Injury Table; and her symptoms occurred within the time period after vaccine administration. 42 U.S.C. § 300aa–11(c)(1)(C)(i). Specifically, the Vaccine Injury Table lists “Shoulder Injury Related to Vaccine Administration” (SIRVA) as an injury associated with the tetanus vaccine if the first symptoms or manifestations occur within 48 hours after the vaccination. 42 C.F.R. § 100.3(a).
Lisa argued that she was not seeking damages for a vaccine-related injury because her claim did not relate to the vaccine or its components. 42 U.S.C. § 300aa–11(a)(2)(A), (9) (requirement that claimant exhaust Vaccine Act remedy applies to actions “for damages arising from a vaccine-related injury or death” and “applies only to a person who has sustained a vaccine related injury or death”). However, the Superior Court found that an injury is vaccine-related and is subject to the Vaccine Act if the vaccine was a cause of the injury, even if the only tortious conduct alleged against the defendant is unrelated to the content of the vaccine. Aull v. Secretary of Health & Human Services, 462 F.3d 1338, 1343-44 (Fed. Cir. 2006) (medical malpractice action for negligent treatment of injury caused by vaccine was vaccine-related action because it was not facially unrelated to the vaccine’s effects). Moreover, the Court determined that Lisa’s claim was vaccine-related because she asserted claims for injuries listed in the Vaccine Injury Table. 42 U.S.C. § 300aa–33(5). The Court also rejected Lisa’s argument that her injury in the manner of RSD was not set forth in the Vaccine Injury Table because RSD had been previously held to be a compensable injury under the Vaccine Act. Fullerton v. Secretary of Health & Human Services, 2019 WL 1894574 at *1 (Fed. Claims, Office of Special Masters No. 15-182 Apr. 24, 2019). Accordingly, the Superior Court remanded the case back to the trial court with instructions to dismiss the action without prejudice to any right that plaintiff may have to bring an action after she has filed a petition for compensation under the Program and has exhausted her remedies under the Vaccine Act.