Who is liable if the Covid vaccine goes wrong?
No vaccine, including the Covid-19 one, is 100% safe, though most reported side effects are minor, such as swelling at the injection site, soreness, lethargy or a slight fever. However, when serious side effects and even death occasionally occur, who is liable?
SA lags behind most developed nations when it comes to our Covid-19 vaccine uptake. Less than 30% of South Africans have received the jab, far behind the likes of Botswana (46%), India (50%), the US (64%) and Brazil (70%).
Even though the government has enough supply to vaccinate the entire adult population, there is widespread vaccine hesitancy, a perception that the vaccine trials were rushed and a fear of possible side effects.
In an effort to allay these fears, co-operative governance minister Nkosazana Dlamini-Zuma established a Covid-19 vaccination injury No-Fault Compensation Scheme in April 2021. The purpose of the fund, which falls under the health department, is to provide compensation to those who have suffered harm, loss or damages as a result of the Covid-19 vaccine.
This means the nurse, doctor, hospital or clinic that administered the vaccine would not be liable in the case of serious injury, nor would the pharmaceutical company that manufactured the vaccine, such as Pfizer or Johnson & Johnson, be on the hook. Rather, the government has provided a shield to the medical and pharmaceutical community by setting up this scheme.
Claimants can lodge a claim in their personal capacity. If the vaccine results in death, dependents of the deceased, such as their wife, husband or child, may also lodge a claim. To qualify, a claimant needs to prove they have suffered loss, harm or damage as a result of the Covid-19 vaccine, or that their deceased family member has done so.
We also advise that medical practitioners check in with their financial advisers or brokers for any specific changes to their indemnity cover that may have come about as a result of the impact of the pandemic.
Compensation funds abroad
SA’s No-Fault Compensation Scheme is similar to those of other countries including the US, the UK and many European countries. Having a no-fault compensation fund means pharmaceutical companies are immune from lawsuits from the public.
In theory, it makes it easier for those who suffer from serious injury from vaccines to claim compensation, though in the past 10 years more than 90% of US claimants have failed to obtain any form of compensation. In Australia, claimants must first file a legal claim, and only if they win their case in court will they be eligible for government compensation.
Relief for employers
The establishment of the No-Fault Compensation Scheme is good news for employers considering making the Covid-19 vaccine mandatory for their staff, since it lowers the risk of litigation from claims of serious harm, loss or damage as a result of taking the vaccine.
In addition, there is now another source of compensation available from the department of employment & labour. If an employer demands mandatory vaccination, as Discovery did in 2021, workers who comply and then suffer rare side effects from a Covid-19 vaccine can apply for compensation from the Workmen’s Compensation Fund — in other words, as if it were a workplace injury.
However, before paying out, the claimant must meet a host of criteria, including having had an approved Covid-19 vaccine in SA. They must also prove the causal link between the inoculation and the reported side effects, which must be generally recognised as symptoms of the Covid-19 vaccine.
• The authors represent Indwe Risk Services and MC de Villiers Brokers.