As of: 01/18/2022 6:29 p.m
Anyone who has themselves or their children vaccinated would like to know: who actually pays if there is damage caused by the vaccination? When is the state liable, when is the doctor, when is the manufacturer?
The state is liable for vaccine damage. This is what the Infection Protection Act (IfSG) provides. The original prerequisite for liability was that the vaccination was recommended by a competent state authority. These recommendations from the federal states often even go beyond the recommendations of the Standing Vaccination Commission (STIKO).
Special regulation for Covid-19 vaccination
At the end of 2020, however, the legislator made a special regulation for the special case of Covid-19 in the IfSG: Anyone who has been vaccinated against the coronavirus with a vaccine approved in Germany or is still being vaccinated is entitled to care for health damage caused by the vaccination. In contrast to other vaccinations, it does not matter whether there is a public recommendation from the state authorities or not.
State liability also for children between five and eleven
At the moment, this is particularly relevant for children between the ages of five and eleven: the vaccine from BioNTech has been approved for them in the EU since November last year. The STIKO and many state authorities have so far only recommended vaccination for previously ill children in the same age group or children who have contact with people from the risk group.
Despite these limitations, all children between the ages of five and eleven have a claim against the state for vaccine damage. Even if they have no previous illnesses and are vaccinated. Only in the case of so-called off-label child vaccinations – i.e. vaccinations of children under the age of five – does the state liability currently not apply.
Vaccination damage must be clarified on a case-by-case basis
Vaccination damage occurs when the consequences of the vaccination go beyond the usual extent of a vaccination reaction. Normal side effects such as rashes, fever or headaches are not included.
Whether there is vaccination damage must then be clarified in each individual case: the pension offices in the federal states are responsible. They assess whether damage to health that occurred in connection with the vaccination was actually caused by the vaccination.
According to the Federal Health Care Act (BVG), temporary health problems are not to be taken into account. There must therefore be at least six months between the vaccination and the assessment.
For the claim for care against the state, it makes no difference whether the symptoms that have occurred were known in advance as possible side effects. Those affected do not lose their entitlement even if they have been correctly informed and have consented to the vaccination.
Height depends on the individual case
The right to care is intended to compensate for the health and economic consequences of the vaccine damage. A lump sum to which those affected are entitled cannot therefore be given.
In most cases, the amount of possible benefits depends on the severity of the damage to health that has arisen in the individual case as a result of the vaccination. According to the Federal Pensions Act (BVG), the entitlement then includes, among other things, the costs of medical and medical treatment and, if applicable, a monthly pension. Compensation for professional disadvantages is also possible.
Doctors are only liable for mistakes
The liability of the state for vaccination damage does not mean that the vaccinating doctors are generally released from any liability. However, they must have done something wrong – for example, they dosed the vaccine incorrectly or put the needle in the wrong place. Only then do they have to answer for possible damage.
However, if the vaccination was carried out professionally, the important terms “clarification” and “consent” come into play. If the known side effects and possible harm were properly explained before the vaccination and the patient consented, then doctors are not liable.
High hurdles also for manufacturer liability
The hurdles are also high for vaccine manufacturers to be held liable. According to the Medicines Act (AMG), they are obliged to pay damages if the drug – i.e. the vaccine – has harmful effects when used as intended that “exceed a level that is acceptable according to the findings of medical science.”
But: It is recognized in case law that known side effects are acceptable if the drug is approved. This is where the package leaflet becomes important: If the manufacturer has included known side effects in the information and package leaflet, there is probably no longer any room for him to be liable. However, if previously unknown side effects come to light, you can sue the manufacturer. But then you have to prove that you were actually harmed by the vaccination.
Conclusion: This means that the claim against the state in the event of vaccine damage should be the one with the best chances.