Personal Finance

Legal options in case of Covid-19 jab injury

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Healthcare staff prepares to administer a Covid-19 vaccine. FILE PHOTO | AFP

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Summary

  • At the time of going to press Sunday, hundreds of thousands of Kenyans had been vaccinated against Covid-19.
  • There have been several arguments for and against the vaccine.
  • As a legal practitioner I have been questioned severally if there would there be any legal redress if someone suffered serious injury as a result of taking the vaccine.

At the time of going to press Sunday, hundreds of thousands of Kenyans had been vaccinated against Covid-19. There have been several arguments for and against the vaccine. As a legal practitioner I have been questioned severally if there would there be any legal redress if someone suffered serious injury as a result of taking the vaccine.

In Kenya the vaccine is provided by different foreign based manufacturers. The Covid-19 vaccination drive therefore presents a unique and novel legal issue.

There are no conclusive or definitive studies done on the effects of the vaccine on people because it is a recent response to the pandemic. There have, however been some reports of incidences of side effects suffered by some people who took the vaccine. As the reports are not conclusive and seem to be speculative, I would rather not comment. However, I will set out the general legal position.

In the US, one cannot sue the manufacturer of the Covid-19 vaccine due to a legal protection granted under the Readiness And Emergency Preparedness Act. Under this Act generally, manufacturers are protected from negative side effects of medication they produce in a time of pandemic. Such manufacturers who enjoy legal immunity include those who make critical medical supplies but the exception is if the manufacturer knowingly supplies a harmful drug.

The position in other countries like Kenya may be different. At the time of writing this, I was not aware of any legislation that would grant such manufacturers legal immunity. If there is such a legal protection in Kenya then the position would be the same. However, in the high likelihood that there is no such legal provision, then persons who suffer serious injuries as a result of taking the vaccine can sue the manufacturers for damages sustained as a result of taking the vaccine.

The doctrine of sovereignty of nations means that the US legal protection cannot apply in Kenya unless Kenya has legislated a similar provision. In Kenya, domestic law would apply in the event of a personal injury claim.

The Kenyan domestic law so far would support such claims under statutory law, consumer laws, common law and torts law. Under statutory law, the Consumer Protection Act supports remedies for consumers who suffer personal damages as a result of consuming harmful substances like medication. Torts law would also support a claim by a victim for any tort arising out of consuming the vaccine. A tort is a personal injury occurring to someone due to the negligence, fraud, omission or commission of another entity such as a pharmaceutical company.

In the event that a pharmaceutical company negligently supplies a harmful vaccine or fraudulently does so, then it is plausible that in Kenya consumers would be able to recover damages.

There is a high threshold to be met before such suits can be sustained, for example the process of proving that such a vaccine was actually harmful or that the manufacturer knowingly concealed serious side effects.

Precedent has been set before where pharmaceutical companies have been successfully sued in suits worth billions of dollars for product liability and misleading information. In Kenya therefore a victim can recover under various laws unless there exists a legal immunity.