Despite scientific uncertainties, French courts have awarded compensation to MSers. which occurred following vaccination against hepatitis B. These legal decisions have aroused fierce criticism in the medical world. Both a judgment given on 25 May 2004 by the Court of Cassation and a new publication in the journal Neurology have encouraged us to look once more at this controversial issue. French judges began compensating MSers at the end of the 1990s. One of the first judgments was given in 2001 by the Court of Appeal of Versailles when a pharmaceutical laboratory was held liable for the onset of MS following vaccination against hepatitis B. On appeal, the Court of Cassation overturned the judgment in September 2003, finding that the Court of Appeal judges had based their decision on a hypothetical causal link. However, the only reason why the Court of Appeal judgment was quashed was the contradictory evidence on which the judges had based their presumptions. Several of the judgments given since that date seem to confirm this hypothesis. On 25 May 2004, the 2nd civil law chamber recognized that MS which occurs following a vaccination against hepatitis B (a vaccination carried out for work-related purposes) could be considered as an accident at work, without questioning the possible causal link between the illness and the vaccine. This jurisprudence in the matter of hepatitis B vaccination shows the need for great care in expert practice. Effectively, when confronted with drug related imputability, the expert usually bases his reasoning on three points: the causal role of the generating factor, the chronology and other causes of damage. In terms of MS, all these factors are modified. More than ever, an expert must, in terms of imputability, be objective, prudent and clear in his conclusions.
Rougé-Maillart et al. Recognition by French courts of compensation for post-vaccination multiple sclerosis: the consequences with regard to expert practice. Med Sci Law. 2007 Jul;47(3):185-90.
“This abstract summarises the problem; the legal system applies the principal of ‘beyond reasonable doubt’ and hence often award compensation when the scientific evidence does not support the claim. How do you disprove something in a court of law? You don’t; you simply create enough uncertainty, or certainty, and jury and/or judge will have doubts and rule in your favour.”
“The majority of scientists and MSologists accept that there is no causal link between hepatitis B vaccination and MS. There may be some laggards, who believe the contrary, but there always are. However, try telling someone who develops MS shortly after a vaccination that there is no causal link; in their minds it is causal. In my opinion it is probably a coincidence; but I can’t categorically say that in that particular individual the attack was not precipitated by the vaccination. This is why I am very careful how I counsel MSers about the risks and benefits of vaccination in general. I choose my words very carefully and make sure they understand the uncertainty.”
“Please note that every vaccine is different; so what applies to Hep B cannot be applied to yellow fever, polio, MMR, etc.”