No basis for patient injury compensation following vaccination

A woman was employed as an administrative manager in the municipal child and family services. Following a mumps outbreak in the municipality, she received a booster dose of the MMR vaccine on the recommendation of the municipal medical officer. The recommendation was made in consultation with the Norwegian Institute of Public Health (FHI). A few months later, she was diagnosed with multiple sclerosis. The woman applied for patient injury compensation, linking the illness to the MMR vaccine. Her application was rejected due to a lack of causal connection. She subsequently brought a claim against the State.

The question before the Supreme Court was whether the vaccination could be considered as “recommended under the Infection Control Act”, see section 3 (2) of the Patient Injury Act. For such vaccinations, a lower standard of proof applies for establishing causation, which would have entitled the woman to compensation.

The majority of the Supreme Court held that vaccinations “recommended under the Infection Control Act” refer to those administered as part of the national immunisation programme. However, the vaccination in question was not administered as part of that programme. Vaccinations recommended by municipal authorities are not covered by the rule on a lower standard of proof, even if the recommendation is made in consultation with FHI and based on FHI’s vaccination guidelines.

The vaccine the woman received therefore falls outside the scope of the special standard of proof rule. On that basis, the parties agreed that the requirement for causation was not met, and that there was no basis for compensation.

A minority of two justices held that when the municipal chief medical officer and FHI, based on their responsibilities under the Infection Control Act, recommend vaccination as an infection control measure, this constitutes a recommended vaccination under the Act.

The judgment clarifies what constitutes “recommended vaccinations under [the Infection Control Act]”, see section 3 (2) of the Patient Injury Act.

Read the judgment from the Supreme Court (Norwegian only) (PDF)

Area of law: Tort law, section 3 subsection 2 of the Patient Injury Act

Key paragraphs: 71, 72, 88

Justices: Øie, Falch, Høgetveit Berg, Hellerslia, Poulsen