By JEFFREY AXELRAD
WASHINGTON — In the immediate aftermath of the ill-fated 1976 H1N1 swine flu program, I became lead counsel for the United States in the Swine Flu Products Litigation.
At the Department of Justice, along with some wonderful attorneys and paralegals, I handled more than 4,000 claims seeking damages and more than 1,400 lawsuits.
Two policy decisions formed the backdrop to this litigation: (1) Congress enacted legislation making the United States the sole defendant in litigation that otherwise would have been pursued against program participants, such as doctors, health clinics and vaccine manufacturers; and (2) health professionals and policy-makers strongly endorsed and encouraged a mass-immunization campaign.
Much to the surprise of those leading or endorsing the program, a rather rare malady — Guillian-Barre Syndrome, which usually causes temporary paralysis but can result in death — was associated with administration of the swine flu shots in about one in 100,000 instances.
While most of the claims and litigation were without merit — we won the overwhelming majority of all cases litigated — we admitted liability for GBS claims and cases that the shots caused.
The difficulty of defending the cases was heightened by the fact that the Swine Flu Program of 1976 was entirely unnecessary. Mighty few instances of the flu were reported in the run-up to the height of the fall program, and the few instances dropped off as the season grew closer.
Policy for the potential 2009-2010 swine flu pandemic should not be based on what did not happen in 1976; we should not act like generals fighting the last war.
Here is why: This year, swine flu is the predominant flu strain being reported to the Centers for Disease Control; flu levels remained above normal during the summer; and reports are increasing.
These facts stand in dramatic contrast to 1976, although the decision to tout the current seasonal, non-swine flu vaccine arguably might be somewhat analogous to 1976’s policy misjudgment.
Moreover, the current swine flu appears to strike younger, otherwise healthy people hardest, leading to the real prospect of massive serious morbidity and avoidable deaths.
The evidence, collected by Dr. Mark A. Miller and others in their authoritative June 2009, New England Journal of Medicine article, and confirmed by the flu reports CDC recently summarized is compelling: The potential for more than an epidemic — even a pandemic — is real. If this flu continues on its current track, millions of Americans may well need medical assistance all at once.
Medical personnel are needed on the job during any health care emergency. Similarly, vital security personnel are needed to fend off danger, which their absence actually could compound. Our armed forces are another special situation; their readiness may be deemed to demand ordering personnel to receive the flu shots in order to be ready for action.
An effective mass immunization campaign may result in a measure of herd immunity — if enough individuals are vaccinated spread of the flu is deterred.
Yet applying governmental coercion on the public is inadvisable. The value of personal liberty and valid, justifiable legal limits on governmental action are decisive. This is a reason why personnel performing essential health and security functions must be prepared to be on the job during a pandemic. As a condition of employment, employers must direct these personnel to receive shots and the employee must follow this direction or lose their jobs, absent a special excuse. This action to protect the general public is unpalatable but necessary.
X Jeffrey Axelrad is a lecturer in law at the George Washington University Law School. He served as director of the U.S. Department of Justice’s Torts Branch from 1977 to 2003. Distributed by McClatchy-Tribune Information Services