§ 130A-423. North Carolina Childhood Vaccine-Related Injury Compensation Program; exclusive remedy; relationship to federal law; subrogation. - North Carolina Statutes

§130A‑423.  North Carolina Childhood Vaccine‑Related InjuryCompensation Program; exclusive remedy; relationship to federal law;subrogation.

(a)        There isestablished the North Carolina Childhood Vaccine‑Related InjuryCompensation Program.

(b)        The rights andremedies granted the claimant, the claimant's parent, guardian ad litem,guardian, or personal representative shall exclude all other rights andremedies of the claimant, his parent, guardian ad litem, guardian, or personalrepresentative against any respondent at common law or otherwise on account ofinjury, illness, disability, death, or condition. If an action is filed, itshall be dismissed, with prejudice, on the motion of any party under law.

(b1)      A claimant may filea petition pursuant to this Article only after the claimant has filed anelection pursuant to Section 2121 of the Public Health Service Act, P.L. 99‑660,permitting the claimant to file a civil action for damages for a vaccine‑relatedinjury or death or if the claimant is otherwise permitted by federal law tofile an action against a vaccine manufacturer.

(c)        Nothing in thisArticle prohibits any individual from bringing a civil action against a vaccinemanufacturer for damages for a vaccine‑related injury or death if theaction is not barred by federal law under subtitle 2 of Title XXI of the PublicHealth Service Act.

(d)        If any action isbrought against a vaccine manufacturer as permitted by subtitle 2 of Title XXIof the Public Health Service Act and subsection (c) of this section, theplaintiff in the action may recover damages only to the extent permitted bysubdivisions (1) through (3) of subsection (a) of G.S. 130A‑427. Theaggregate amount awarded in any action may not exceed the limitationestablished by subsection (b) of G.S. 130A‑427. Regardless of whether anaction is brought against a vaccine manufacturer, a claimant who has filed anelection pursuant to Section 2121 of the Public Health Service Act, as enactedinto federal law by Public Law 99‑660, permitting a claimant to file acivil action for damages for a vaccine‑related injury or death, or who isotherwise permitted by federal law to file an action against a vaccinemanufacturer, may file a petition pursuant to G.S. 130A‑425 to obtainservices from the Department pursuant to subdivision (5) of subsection (a) ofG.S. 130A‑427 and, if no action has been brought against a vaccinemanufacturer, to obtain other relief available pursuant to G.S. 130A‑427.

(e)        In order to preventrecovery of duplicate damages, or the imposition of duplicate liability, in theevent that an individual seeks an award pursuant to G.S. 130A‑427 andalso files suit against the manufacturer as permitted by subtitle 2 of TitleXXI of the Public Health Service Act and subsection (c) of this section, thefollowing provisions shall apply:

(1)        If, at the time anaward is made pursuant to G.S. 130A‑427, an individual has alreadyrecovered damages from a manufacturer pursuant to a judgment or settlement, theaward shall consist only of a commitment to provide services pursuant tosubdivision (5) of subsection (a) of G.S. 130A‑427.

(2)        If, at any timeafter an award is made to a claimant pursuant to G.S. 130A‑427, anindividual recovers damages for the same vaccine‑related injury from amanufacturer pursuant to a judgment or settlement, the individual who recoversthe damages shall reimburse the State for all amounts previously recovered fromthe State in the prior proceeding. Before a defendant in any action for avaccine‑related injury pays any amount to a plaintiff to discharge ajudgment or settlement, he shall request from the Secretary a statementitemizing any reimbursement owed by the plaintiff pursuant to this subdivision,and, if any reimbursement is owed by the plaintiff to the Department, thedefendant shall pay the reimbursable amounts, as determined by the Secretary,directly to the Department. This payment shall discharge the plaintiff'sobligations to the State under this subdivision and any obligation thedefendant may have to the plaintiff with respect to these amounts.

(3)        If:

a.         An award has beenmade to a claimant for an element of damages pursuant to G.S. 130A‑427;and

b.         An individual hasrecovered for the same element of damages pursuant to a judgment in, orsettlement of, an action for the same vaccine‑related injury broughtagainst a manufacturer, and that amount has not been remitted to the Statepursuant to subdivision (2) of this subsection; and

c.         The State seeks torecover the amounts it paid in an action it brings against the manufacturerpursuant to G.S. 130A‑430;

any judgment obtained by theState under G.S. 130A‑430 shall be reduced by the amount necessary toprevent the double recovery of any element of damages from the manufacturer.Nothing in this subdivision limits the State's right to obtain reimbursementfrom a claimant under subdivision (2) of this subsection with respect to anydouble payment that might be received by the claimant.

(f)         Subrogation claimspursued under the National Childhood Vaccine Injury Act of 1986 shall be filedwith the appropriate court, not with the Industrial Commission. (1985(Reg. Sess., 1986), c. 1008, s. 1; 1987, c. 215, ss. 1, 2; 1989, c. 727, ss.148, 149; 1991, c. 410, s. 1; 1997‑443, s. 11A.85.)