Reasonable doubt

Proof of vaccine damage is now down to common sense.

Courts of law deal in probabilities. If the defendant pleads innocence, a jury must assess all the evidence and come to a verdict that is “beyond reasonable doubt.” This means that the juror may still have some doubts, but the evidence is strong enough to support a verdict.

Parents whose child suffers a serious reaction after a vaccination haven’t been granted the same privilege. They have had to jump through a much higher legal hoop, that of “beyond a shadow of a doubt.”

Most legal experts agree that this is almost an impossibility, and this is especially so for establishing cause-and-effect in matters of health. The first place to look is the medical evidence. If no research can be found to support the defendant’s claim, the claim is invariably immediately dismissed. If there is some evidence, the claim will still probably fail because it cannot be established beyond a shadow of a doubt that the vaccine was to blame on that particular occasion.

Instead, it could have been some other factor at play, or, at best, the child had a genetic propensity, and the vaccine merely accelerated the process.

Not surprisingly, very few cases of vaccine damage are accepted, and compensation payments from governments – which take on a vaccine manufacturer’s liability – are rare. A result for the government, and confidence is maintained in a national vaccine program, perhaps, but the parents may be left with a child who has suffered permanent damage, and for whom there is no financial support.

Accepting the unreasonableness of establishing vaccine damage, the European Court of Justice – which has ultimate jurisdiction over the 28 member states of the European Union (EU) – has lowered the legal requirement to that of “beyond reasonable doubt.”

It is now sufficient in a European court for the evidence to satisfy four criteria, and the first of these is that there is “specific and consistent evidence” around the time of the vaccination. In other words, it is reasonable to assume that the vaccine is responsible if, for instance, a perfectly healthy child starts rocking his head or loses the ability to speak within days of being vaccinated.

The second relates to the child’s state of health, and is linked to the first proof: up to being vaccinated, the child has always enjoyed good health, and has suffered none of the symptoms before.

The third is also related to the first and second proofs: there is no family history of
the child’s sudden post-vaccination health problem.

Although all the tests are grounded in common sense, the fourth is perhaps the most common-sensical of them all: are the symptoms common in children soon after they have been vaccinated? Collectively, a court could therefore reasonably assume that “the administering of the vaccine is the most plausible explanation” for a child’s poor health, provided the evidence is “sufficiently serious, specific and consistent.” Interestingly, the ruling doesn’t look for scientific evidence, which has upset the pro-vaccine lobby.

It came about when the court was asked to make an ultimate ruling on the case of a French man, known only as J.W., who developed multiple sclerosis (MS) a year after he had the hepatitis B vaccine in 1998. He sued the manufacturer, Sanofi Pasteur, in 2006, and his case eventually reached the French court of appeal, which ruled that there was no evidence that linked the vaccine to MS, and so dismissed it. Although J.W. died in 2011, the French Court of Cassation took his case to the European Court of Justice.

The court wasn’t ruling on J.W.’s case specifically – and it may well be that it would have failed the fourth test, as it’s not common for someone to develop MS after the hepatitis B vaccine – but was setting general markers for courts to follow going forwards.

To establish that a vaccine may do individual harm, it’s enough to produce reasonable, and not absolute, proof. It’s what we require of someone facing a criminal charge, and it should be enough for parents who had their child vaccinated, and who believed the vaccine was safe.

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