Unable to sue, Michigan woman files claim in her mom’s COVID-19 vaccine-related death

Tatum Strieter-Byron is asking the federal government to compensate her for her mother Sandra Jacobs’ death in April of a confirmed complication of the Johnson & Johnson COVID-19 vaccine.

“This is about the fact that there was wrongdoing that took place, and we are going to hold them accountable,” Strieter-Byron of Clinton said last week.

Strieter-Byron received confirmation Monday her claim to the Countermeasures Injury Compensation Program has been received.

The US Health Resources and Services Administration program benefits Americans seriously injured or killed by a vaccination, medication, device or other item recommended to diagnose, prevent or treat a declared pandemic, epidemic or other security threat. These items have been suggested by the government to fight COVID-19, anthrax, smallpox or the zika virus.

It was established because COVID-19 vaccine manufacturers and others are granted liability protections through the Public Readiness Emergency Preparedness Act, enacted in 2005. In 2020, the US Health and Human Services secretary invoked the act and declared COVID-19 a public health emergency, warranting Johnson & Johnson and others immunity from lawsuits. The only exception is death or serious physical injury caused by “willful misconduct.” The protections, unless amended or rescinded, extend through Oct. 1, 2024.

Claims to the compensation program must be made within one year of the date the covered countermeasure was received.

RELATED: Michigan woman’s death caused by rare Johnson & Johnson COVID vaccine side effect, autopsy report says

Jacobs, 60, received the single-shot vaccine at a CVS pharmacy on April 8, just five days before federal health agencies temporarily paused the vaccine administration while they examined an unusual blood-clotting disorder.

She died on April 21 of “complications of cerebral venous sinus thrombosis,” a type of stroke. Recent administration of the vaccine was a contributing condition. Such an outcome is exceedingly unusual, a fact that makes Strieter-Byron bristle.

“You telling me that it’s rare does not make her any less dead,” she said.

She took her case to multiple law firms, but no lawyer has agreed to take action on her behalf. One firm advised her to file the countermeasures claim, which she did on her own.

Gary Krochmal, a Farmington Hills lawyer, said Strieter-Byron has a “hard road to go.” She will have to show the stroke or hemorrhage in Jacobs’ brain was a direct result of the vaccine. It’s a tough burden, Krochmal said.

He is part of the Vaccine Injured Petitioners Bar Association, but he is not handling any countermeasures cases. He does not see such work as efficient or profitable.

The program is not authorized to provide reimbursement for attorneys’ fees. It will repay medical expenses, lost employment income and survivor death benefits, but only when these are not covered by other payers, such as health insurance, Veterans Affairs benefits or workers’ compensation.

From 2010 to Feb. 1, there have been 7,033 claims filed and only 40 were deemed eligible for compensation, according to the program’s data. In 29 cases, people received benefits totaling about $ 6.1 million, 10 eligible applicants did not report eligible expenses and one case is pending. The program has not paid any COVID-19 countermeasures claim through Feb. 1. One vaccine claim due to an anaphylactic reaction has been deemed eligible but is pending review. Most of the paid claims are associated with the H1N1 vaccine administered during the 2009 swine flu pandemic, according to the program.

Krochmal does take cases to the National Vaccine Injury Compensation Program, a no-fault alternative to the traditional legal system for resolving vaccine injury petitions. It was established in the 1980s by a federal law that says no vaccine manufacturer shall be liable in civil action for damages arising from a vaccine-related injury or death resulting from unavoidable side effects or due solely to the manufacturer’s failure to provide direct warnings.

The aim was to stop litigation that threatened to cause vaccine shortages and reduce vaccination rates of commonly administered childhood vaccines, including measles, mumps, pertussis or whopping cough and hepatitis A and B.

The national program allows for the payment of attorneys’ fees. It also gives petitioners more time – three years after the first symptom or within two years of death.

Of about 20,800 adjudicated claims, about 8,800 have been deemed compensable and the program has paid claimants about $ 4.7 billion.

The hope is the COVID-19 vaccines will be added to the national program, but that will require an act of Congress, Krochmal said. “And that is a slow slog getting anything through Congress at all.”

Granting manufacturers immunity in a situation like the pandemic incentivizes them to make the vaccines, said Mark Dotson, a professor at Western Michigan University Cooley Law School who specializes in product liability and health care. “Because without the protection, we would not have any vaccines,” he said and noted there have been nearly 1 million COVID-19 deaths in the United States. The country has recorded about 79.2 million cases. “Have you come across anybody whose dared to consider what the death toll would be without the vaccines?”

Krochmal, who is fully vaccinated and boosted against COVID-19 and participated as a child in polio vaccine trials, said the vaccines were counted as a countermeasure because of the speed with which they were developed and approved for emergency use. Research and experimentation took far longer in creating other common vaccines.

He does not know how long Strieter-Byron’s claim will take, but in the national vaccine program, he said, a backlog is dragging along for years cases that should be resolved in six months.

Strieter-Byron was unsure what to expect. She is not in need of money; her mother’s death-related expenses are paid, Jacobs’ house was sold and any compensation she received would go to her children’s college funds. She hopes someday she will be able to participate in a class-action lawsuit. In Michigan, however, pharmaceutical companies are protected from liability by a state law amended in 1995.

“It’s incredibly frustrating to, I would say, the families that we’re not able to really do anything. Our hands are tied, ”she said.

Something like this is happening and there is no recourse, she said. “Thank you for your sacrifice.”

Nine people who received the Johnson & Johnson vaccine, authorized for emergency use in February 2021, have died of thrombosis with thrombocytopenia syndrome (TTS), characterized by blood clots combined with low platelet count, the US Centers for Disease Control and Prevention have reported. There have been 57 confirmed cases of TTS after the shot, according to the CDC.

About 18.5 million Johnson & Johnson doses have been administered in the United States, making the side-effect rare.

It is unclear whether Jacobs is included in the death total. This week, the CDC declined to confirm hers is a known case. The agency does not identify cases by name. Her death has been documented by the Vaccine Adverse Events Reporting System, used to detect possible safety concerns associated with US immunizations. The reports are unverifiable and can be made by anyone.

Among those who died with TTS, six had a diagnosis of cerebral venous sinus thrombosis, an uncommon form of stroke, according to the CDC. It occurs when a blood clot forms in the brain’s venous sinuses, which prevents blood from draining. A hemorrhage may result. All but two were women.

The CDC now recommends the Pfizer and Moderna vaccines over the Johnson & Johnson vaccine because of the risk of serious adverse events. Those who already received the shot should get a Pfizer or Moderna booster shot in most situations, according to the CDC.

Based on available data, there is not an increased risk for TTS after mRNA COVID-19 vaccination, the CDC says.

Johnson & Johnson’s vaccine may be considered for those who have a severe allergy to an ingredient in the mRNA vaccines or for people who would otherwise remain unvaccinated due to limited access to the alternate vaccines.

In February, the New York Times reported the company temporarily shut down the only plant, located in the Netherlands, making useable batches of the vaccine.

Strieter-Byron wants to see it pulled off the market, and her mother’s death acknowledged in a court. She wants everyone to know Jacobs’ name.

Patient and persistent, she has explored every option. “Every single one. And I will continue… You can mark my words. ”

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