Vermont Legislature SmartTranscripts:

[Rep. Martin LaLonde (Chair)]: To the host judiciary committee, and we're gonna have some additional testimony on h five forty five. And, also, if you could identify yourself for the record, I'm I'm happy that I ran into you in the in the cafe.

[Alison Despathy (HealthChoice Vermont; Danville, VT)]: Thank you. Thank you for squeezing me in. I really appreciate it.

[Rep. Martin LaLonde (Chair)]: And then we're gonna also hear, I mentioned as far as the medical malpractice, I reached out to get trial attorneys. Now we're get some testimony after Alison very shortly on that. I'll turn it over to you if you identify yourself for the record and proceed. Thank you for being here.

[Alison Despathy (HealthChoice Vermont; Danville, VT)]: Yes, thank you so much for having me, LaLonde. I'm Alison Despathy, Danville, Vermont resident. Also my background, I have been a clinical nutritionist. I have a Master's of Science in Clinical Nutrition in St. Johnsbury, Vermont, twenty five years. I've also taught in the Vermont State College's health, biology, nutrition, and wellness for life for twenty five years as well. And then I also am a co director for HealthChoice Vermont, which we represent 5,000 Vermonters who are very dedicated and care a lot about private personal medical decisions. So that's a little bit of my background. And I just want to speak to, I know you have sort of limited jurisdiction on this bill, and I did just give full testimony in Human Services Tuesday. I don't know if people have had a chance to look at it, probably not. But if you do, it will be a little bit more comprehensive. So basically, I, both personally and also in speaking for HealthChoice Vermont, nobody has any issue with what the Department of Health Commissioner is attempting to do here. Very understandably, he is trying to procure vaccines for Vermonters and make sure that they're available from a cost standpoint and make sure insurance is covering them. So nobody has any issue with that because of the changes happening on a federal level. Where many people hold concerns is with what he's trying to offer. Again, I don't know if you've read the bill yet, but on page seven, they're trying to put in a liability shield for providers. And there already is a federal liability shield, which is actually very contentious. Both states and Congress have been trying to fight this since 1986. President Reagan signed in a bill that completely created a liability shield for pharmaceutical companies manufacturing vaccines. And I'm sorry, sometimes the history is kind of relevant. So I just want to say real quick, the DPT vaccine in the 1980s was causing major seizures and neurological damage. So vaccine companies were getting sued, 200 lawsuits. I have this all in my record. I just found out today I'm testifying. So we're here. So I'll make sure you get all of this information as well. Deep PT? Diphtheria pertussis tetanus. And at that time, they were using a live pertussis vaccine. So then they went to acellular, but that's what was causing the neurological damage. So because of that, President Reagan signed in a bill to protect the pharmaceutical companies. And just kind of put that in perspective, there's no other product that has that level of a liability protection. Every company is responsible for the safety of their product. So this is a really, really big deal. And since then, and because of that, with that 1986 law, they also put into play what's called the Vaccine Adverse Event Reporting System. And that was to recognize that like any medication, there's benefit risk. We're gonna see that. So we wanna be monitoring what's happening from vaccine adverse event. So those were simultaneously put into play. And since then, since 1988 now when it began, over five I have to get this. I have the number in here. Should probably check it. Sorry. Just to make sure. Yeah. So over $5,000,000,000 have been paid out to United States citizens or not even citizens, but over $5,000,000,000 have been paid out for vaccine adverse events, harms, injuries, and death at this time. So we acknowledge that these cause harm. So I think the biggest concern that people are having is if the state of Vermont is gonna come in and try to offer a further liability shield on these products, sort of, or for providers, what sort of liability is the state and the Department of Health actually taking on because of that? So I think that's the layer that needs to be really dug into a bit more. And I would please confirm with Commissioner Hildebrandt. I did speak with him last week. Yesterday in testimony, and I just want to make sure that I have this right, but I think he said that they're only looking for a liability shield because the state of Vermont would be giving its own recommended schedule. But on page seven, it specifically says that they're looking for the liability shield for the adverse events for the harm specifically done. And this is where I wanna say, there are Vermonters, for example. There's a girl, her name is Kaylin Matton. She died at the age of seven from a flu zone vaccine that was on the birth certificate. The reason I bring it up, it's in your legislative record. Her mother testified on this in 2015. She received from the National Childhood Vaccine Injury Compensation Program, which was also put in place with this 1986 law. She received $250,000 which is horrible. I mean, how can you put a number on the life of a child? But she received a quarter of $1,000,000 because her daughter died from the flu zone vaccine, which contained mercury at the time. And so I think what we are seeking and hoping that you can consider is in the Human Services Committee, there's a bill H-sixty nine. It's had bipartisan support in the past. It's been, I think, here now for ten years. And what it would do is it would make the Department of Health look through this federal vaccine adverse event reporting system and pull out what is relevant to Vermont. What sort of injuries and harms and deaths have we seen from vaccines so that they can present that to you guys as the legislators and also to the Department of Health to see, is there a safety signal trigger here? Is there a certain lot of a vaccine? Is there a certain type of a vaccine that we're seeing more issues with? So if the state is going to try to take that on, they should also be simultaneously taking that responsibility on as well. The other thing that comes up here is relevant sort of from a legality standpoint is how is a provider who's giving a vaccine offering informed consent? When you go in to get a prescription or a vaccine, how is someone letting you know benefit and risk so someone can make an informed decision? Because if you're going to go so far as to give these providers a liability shield, which they already have on a federal level, then there really should be some steps in place to, we need to look for adverse events, and we also need to make sure that informed consent is happening. Because I think all of us know many times we really do trust our doctors. I trust you. I trust what you're saying to me, and I have a right to know the benefit and the risk when I try to make this informed decision. And the last piece I just wanna sort of put in context with this whole thing is this all stemmed from a 33 page report that I can share with you, it's in my testimony, and I'll make sure you get it separately, where the Health and Human Services Administration went through and they looked at 20 different peer countries for their vaccine schedules. We are an outlier in The United States. We have more than twice as many vaccines that we give to children. And so what we tried to do, not we, what Health and Human Services did is they looked at what are called consensus vaccines. What are countries doing? What vaccines are they giving? How many times are they giving it? And we tried to align that more. And the one last one, which I think you guys may have heard a buzz around if I don't know what you tune into for health, but the hepatitis B vaccine from a federal level, Health and Human Services, was removed from the schedule. And now they said, We're not gonna give that to babies the first day of life. And I just wanted to say something to you guys on this. The hepatitis B vaccine, Recumbivax, was only studied for five days in one hundred and forty seven children up to the age of 10. It was not compared to a placebo. So there's a real lack of clinical research. That's not a robust, durable study. And in fact, that's against the law, and that's why there's a lawsuit that's been in play. In 2017, they started filing, and I'll share this with you, I have a timeline. They started filing FOIA requests to get what is the safety information? How was this vaccine licensed? Where's the safety? And they ended up with a sixteen ninety four page document from the FDA in Health and Human Services that confirmed that this was only studied for five days in one hundred and forty seven children. And this is where you get into why would the pharmaceutical company do that? Well, if they're not liable for their product and they're there to make profit, we all know the opioid epidemic, why would they put the money into products they're liable for, like Lipitor? You can look at Lipitor, Eliquis, all of these, like their top sellers, two years to nine years compared to a placebo. So that's where you're getting those robust studies. In the vaccine products, you're not getting it because the pharmaceutical industry is not liable. And so I just wanted to make sure that this came to the table so you guys can see that there is a bit of a deeper issue here when we start talking about the liability protection. And this is sort of the disconnect that I'm seeing in Vermont and why I struggle with this part of the bill, and many do, is that on a federal level, we have this law protecting pharmaceutical companies and doctors for giving products on the vaccine schedule. If there's a change on the federal level because they see new research or safety signals and they decide to make a change, yet the state is gonna go its own course and stick with what they're determining as a recommended schedule, what sort of liability, where does that put the state and the Department of Health, and how are they accessing the science to determine that that's the best path? Because that science is not publicly available. That has to be accessed from pharmaceutical companies and the FDA, through FOIAs, through court orders, and through lawsuits. We can't go and be like, Oh, what did Pfizer do when they studied this vaccine? Where you think that should be the case, but it's not. So I'm scratching the surface, I at least wanted you guys to note what was in play and why there's concern around those aspects versus just the, we wanna afford it, we wanna find it, we wanna buy it who we need to buy it from, and we want insurance to cover it. The other part is a struggle. My opinion, if they're gonna go forward with these two aspects, the two things that should be looked at is standardization on how does a health care provider giving a vaccine ensure informed consent? Do you have someone check off after you've gone through that, yes, I feel I have informed consent? Because in Theresa Woods, excuse me, in Chair Wood's committee, she asked that question. Informed consent can be very different for anyone. Someone might just be like, Yeah, sure, I trust you. Other people are like, I wanna know. So is there a standardization on that that should happen? And the other thing is, is if you're gonna go this course with a state based recommended level different, which what's that based on for one, but then two, you gotta be monitoring adverse events. You have to know what's happening on a Vermont level. If we're gonna take that responsibility on, and we wanna know what's happening in our state in case there's a shift. So that kind of scratches the surface a little bit. I hope it's helpful. And I will send all of the testimony. And I'll put the most relevant links at the top for you to see where this is coming from. It's not an out of the blue. We can't politicize the science, which is we know is what happens. It's so horrible for all of us then to figure out what's what. And so that's where it's trying to recognize that Health and Human Services is trying to look right now at this gap in science that's happened since 1986 when they had that liability shield put in place. And that's where I just wanna see it be honestly discussed. Why are they going this path? What's that based upon? And obviously, as you guys, you guys are elected here for Vermont. What can you guys do to help Vermonters best? And I know that's what you're dedicated to. So thank you for letting me speak.

[Rep. Martin LaLonde (Chair)]: Yeah. No, thank you. And will you take any

[Alison Despathy (HealthChoice Vermont; Danville, VT)]: questions as well? Oh, yes, definitely. Questions.

[Rep. Zachary Harvey (Member)]: Yeah, Zach. Thanks, chair. And thank you, Allison, for coming in. I just wanna publicly thank the chair too for allowing you time

[Alison Despathy (HealthChoice Vermont; Danville, VT)]: I know. Thanks for putting me in.

[Rep. Zachary Harvey (Member)]: On our schedule because I know that it is very fortuitous that this all came out quickly and you were able to make it testify I'm to us. So a couple of questions. First on the liability shield component, are you aware of other states that have similar liability shields? Is that something that you've studied in your Well,

[Alison Despathy (HealthChoice Vermont; Danville, VT)]: they're just trying to implement that now. The American Academy of Pediatrics is really sort of driving this. They also have a lawsuit against Health and Human Services and Robert Kennedy right now. Because of their concerns, they want to stick with the recommended schedule. And this is where I just wish people would get together and say, Well, why are you shifting? Versus we know how it's politicized. American Academy of Pediatrics is also very upset because they just lost 18 to $20,000,000 from the federal government who doesn't wanna fund them in that regard. So there's a lot to it, but basically we're just starting to see it play out in different states And right I will also say that there are also, there's been congressional bills that would get rid of this $19.86 liability shield for the pharmaceutical industries on a federal level. That's in effect. And there's also states scrambling to deal with that. So some states, for example, are saying, well, if a pharmaceutical company is gonna come in here and advertise, then they need to be liable for their products. So people are trying to get around this liability shield that's been in place right now, and we're just starting to see this type of legislation come through with the difference between the federal with the new recommendation.

[Rep. Zachary Harvey (Member)]: Right. And specific to the liability shield, as as if if this bill passes as written, and if the liability shield were implemented, what do you view the risk to be? Like how do you envision that playing out?

[Alison Despathy (HealthChoice Vermont; Danville, VT)]: I feel like it's gonna put the state and the Department of Health at major risk, definitely, because they are going in a different way. And I think the question is, do they even have the science to justify that action? So I just feel like legal wise, I think it's going to be a tricky one.

[Rep. Zachary Harvey (Member)]: And it seems like, especially after your testimony on this, it seems that it raises a lot more questions specific to this legislation and the piece of the legislation that is within our jurisdiction in this committee. I'd be very grateful to you if you could provide other witnesses or references to colleagues or individuals that you've met throughout your journeys and your trials and your studies that would be relevant to this, to the committee. Because I

[Rep. Martin LaLonde (Chair)]: think that's one of the

[Rep. Zachary Harvey (Member)]: things that we struggle with is finding people that maybe are of a very viewpoint on this legislation. Right. But thank you for coming out.

[Alison Despathy (HealthChoice Vermont; Danville, VT)]: Yeah, no problem. And I will also try, there are a few lawyers if you're interested. Again, I don't know where you're going to decide to go with this as a committee, but I can also try to get you some names on that people who might testify. And I don't know obviously what the state and the Department of Health are thinking. Bless you. Bless you. You. Where their thoughts are going to land on it. But I just think that it is putting us at risk as a state. And the other last thing I would say is just keeping in mind that who has access to that science? What is the science that it was licensed on and how is that lacking? And if there's gonna be a change, what is that based upon? And why would the Vermont Department of Health be going differently? So just some questions, thank you. Other questions? Guess I have a question.

[Rep. Angela Arsenault (Member)]: Although I'll look to you first, because it's about the I'm just curious about the informed consent piece, and I know we're not really looking at that.

[Rep. Martin LaLonde (Chair)]: I'll ask what the story is up with the other committee. They generally deal with informed consent, and that's usually not in here. I do have another question that

[Rep. Angela Arsenault (Member)]: Can I ask if

[Rep. Martin LaLonde (Chair)]: you Yeah,

[Rep. Angela Arsenault (Member)]: go I'll for acknowledge that it's not in the section you're But looking I am curious, when I think about inanulation with our medication, and when we go pick up a prescription at the pharmacy, we get that package Is that the type of thing you're talking about?

[Alison Despathy (HealthChoice Vermont; Danville, VT)]: No, so basically with a vaccine, what the pharmacy would print for you is called a vaccine information sheet, a VIS. And I have this in my testimony, in my larger testimony, but on the CDC, it will specifically say this does not qualify for informed consent. The only reason you receive that is, it might say you have a little fever, those sorts of things.

[Rep. Angela Arsenault (Member)]: Right, so I understand that that's current fact.

[Alison Despathy (HealthChoice Vermont; Danville, VT)]: I'm saying what's- I was just gonna get to that, I think. Yeah, definitely, yes. So no, the best thing would be the package insert, cause that's where you have, as required by federal law, section six on any vaccine will specifically say, here are the clinical trials, here are the possible adverse events. These are some of the things for someone to be aware of, because there is real risk. And I really appreciate you saying that vaccines are a medication and there's gonna be benefit and risk. And in my practice, I'll also say I currently work with two hundred people who have been vaccine injured. So this is to me also why it's important to be here. So we recognize this is real and it goes on and people should get informed consent. And also in my slide thing, I have two different definitions, one American Medical Association, some good reputable definitions for informed consent and what that means. I know that's a bigger can of worms of if you're going to go with the state level informed consent standard, what's that going to look like? But I think it's very relevant to this bill and this conversation. Yes. Yeah.

[Rep. Martin LaLonde (Chair)]: So just making sure that I understand. So the bill is just providing immunity to the medical professionals who are providing the prescription and such. It doesn't provide immunity to manufacturers. And the manufacturers, if they're under the federal laws, would preempt that, is our current understanding. Now if they change what is recommended under the federal law, that may change, but that just means that those manufacturers are not protected by that federal program. We're not protecting them here, as Bill, is my understanding. Is that

[Alison Despathy (HealthChoice Vermont; Danville, VT)]: Yes, so I think it was a little bit more in the sense of the only vaccines that the pharmaceutical companies are shielded from are those that are on the children's schedule. And children right now on a full schedule get 84 vaccines. And that's what I was saying. Most of them have aluminum, so you start to get into that can of worms. But as I said, that's where we're an outlier and we have almost twice as many as our other 20 peer countries that we were looked at. But back to your question, I'm sorry. So this bill would offer the liability to the providers and the Department of Health for adverse events related to vaccines, not to the pharmaceutical industry. Right. Yeah. And that's the question where right now they have that federal protection. And if all of those vaccines, even though they just shifted the schedule, are still falling under that federal protection. So that part has not changed. All they did just real quick is they broke the vaccines into three categories: on the schedule, high risk population, and shared clinical decision making. So basically, like with my children, for example, we did not give them the hepatitis B vaccine on the first day that they were born. My husband and I have been together a long time. We don't have high risk behavior. We did not, we made a shared clinical decision with our doctor on that. So that's all that this new recommendation is doing is everyone has access to the same vaccines. They're all still covered with insurance. They're all still protected under the liability shield. We just have them in three categories. Here's the schedule, here's the high risk. You can make a decision with your doctor if you land there. And here's the shared clinical decision making. Maybe this makes sense. So it's really encouraging primary care provider work. That's what this new thing is doing. And right now, Vermont Department of Health is saying, We wanna stick with the regular schedule, or We wanna be able to do our own recommended schedule. So I think that's where we get into, if they do that, where does the liability go? Where is the liability going to go in that case, I think is a question.

[Rep. Martin LaLonde (Chair)]: Yeah, and I'm just saying that the only immunity that we're looking at here is for those medical providers who are doing a prescription. Actually, it's not with respect pharmacy agency of health. Right. It's not with respect to the pharmaceuticals.

[Alison Despathy (HealthChoice Vermont; Danville, VT)]: And I would just That's

[Rep. Martin LaLonde (Chair)]: not part of this. Right. And I think that that's something that is more for the Human Services Committee to grapple with that component of it. I'm just trying to really find out jurisdiction in all And

[Alison Despathy (HealthChoice Vermont; Danville, VT)]: I just want to say that if that liability shield is going to be there, then shouldn't they also be mandated to provide informed consent? Because let's be honest, I've worked with two hundred injured people from vaccines. Some provide informed consent and some don't. Some people believe these are just they've been effective, no problem. And for some people, that's the case. Other people, it's not. So I think what I'm saying is if that liability shield is gonna come into play, then shouldn't there also be a practice, whether that's in this committee or not, that would say, how are you providing informed consent? And did you provide informed consent? And maybe it's as simple as a sheet, as a person signs off and says, Yes, I feel I received informed consent. And what that means, like me, you can see probably I would be digging in, right? What is this? What are the benefits or risks? And other people would just be like, It's fine. I'm good. I've never had a problem. I trust you. Let's do this. So it's gonna look different. So that would be the only thing, I think, for consideration if that liability shield actually is gonna go through.

[Adam Necrason (Necrason Group), representing Vermont Association for Justice]: I appreciate it.

[Rep. Martin LaLonde (Chair)]: Thank you for your testimony.

[Rep. Angela Arsenault (Member)]: Thank you very you very

[Rep. Martin LaLonde (Chair)]: for your flexibility.

[Alison Despathy (HealthChoice Vermont; Danville, VT)]: Thanks for letting me plug in. Have a good one.

[Rep. Martin LaLonde (Chair)]: And Adam joined us as well.

[Adam Necrason (Necrason Group), representing Vermont Association for Justice]: Chair, members of the committee, my name is Adam Nickrasson with Nickrasson Group here with our client Vermont Association for Justice, the trial lawyers. This is the injury bar in Vermont. The and the our work with them is where they kinda relentlessly keep tabs on legislation to keep an eye on civil accountability. And to jump to the very end, the conversation I'm picking up on between you and the previous witness is right where our focus is. So when we looked at this provision, and I put it out to the medical malpractice is what we're talking about, right, in this narrow space. Differently, the chair pointed out than pharmaceutical corporate accountability or government accountability for the quality of the decision making that they made. So this is targeted into the doctor's office where everyone would expect, you know, our medical malpractice experts, there's only a few of them in Vermont, right? We're a small state, a small bar. This is a very complicated area of law that if you get into it, and there's very few claims in medical malpractice in Vermont, right? Last year, you'll remember I was here on icy sidewalks and down in a judiciary auto accidents, and I will be here at 07:30 every morning for those bills because that is the everyday place where there is carelessness that people get hurt. In doctor's offices and hospitals, it's a different space. And so this is narrowly crafted immunity provision, and jump to the end, we're here to park into everything this witness brought in. And often, I would spend so much time searching for a witness like that, because when you hear from the lawyers, they do all this legal speak and the citizen advocates are the ones that we generally connect with. So it's compelling testimony, even as we show up neutral on this because of the law. If we were in DC, I'd be lining up for the hearings to say this federal law is preempted inappropriately and is blocking claims. But in this hearing room, we're under that federal regime. And I have input from several lawyers who have brought claims there for Vermonters, who have believed evidence they've been harmed by vaccination. The previous one has talked about mercury. That's products defect. I usually start off with, where the lawyers and the negligent standards put the gas tank in the middle frame in the Pinto, they brought the Dowcon shield into safety, keeps corporate America accountable and Walmart for their putting sand if they're not putting salt out there on their sidewalks, but sticking with medical malpractice in this bill. Okay? And being very serious about it. These state based experts are basically signaling to you through me, the federal government has preempted this space. The claims are with the product manufacturers. We're utilizing that system, and this doesn't really disrupt that. Now, but for that federal preemption, the sentence would be the thing that we classically litigate with you because legislative counsel kicks it up often as an incentive to do something. Let's immunize negligence. That's carelessness. Let's say it's okay to be careless on your property because we want you to keep those lands open, for example. You know, if if you didn't and then we're here saying on page nine, strike the word gross and say you're immune unless you've been careless in the administration of this. Doctor, did you check the latest government pay paperwork? Because you can't not check the latest schedule and then say, oh, I gave the immunization because I thought it was the standard of care and then use this to avoid medical malpractice accountability for that inappropriate professional action. But nevertheless, that's such an isolated rare notion, and we understand this is a very complicated area that is above our pay grade, and our expertise is in this federal preemption space. And what we know is that the the manufacturer's product liability where you're at and federal government's preempted, so the statute doesn't create super alarm bells for us as the the realists in us. The other times I'm here, you're creating the entire law that applies. Okay? So I'm laying a huge orange cone on the table that this is not me speaking with forked tongue. This is me accepting that this has been federally preempted. Okay? And that our fight with this industry is in Washington. But it's complicated. Science has got to matter. Government's setting a standard of care. We trust doctors to follow it in this area. This is getting into gray space around it. You could strike the word gross. And allow me to stop there. I apologize for the side trip to Salt and

[Rep. Martin LaLonde (Chair)]: No, that was nice to know.

[Adam Necrason (Necrason Group), representing Vermont Association for Justice]: Couldn't help myself, but I really worry about being back here in three weeks when you folks being like, well, saw this sentence three weeks ago and didn't object. And this is the only client of our many that I am personally, passionately, constantly testifying on. I have twenty five years to this sentence in my life.

[Rep. Martin LaLonde (Chair)]: Any questions for him? Thank you very much, Angie. Oh,

[Adam Necrason (Necrason Group), representing Vermont Association for Justice]: wait, one more, Mr. Chad. State sovereign immunity. So when the question becomes about state liability, that's a very well settled area of the law. Now this stuff's gotta if it's going through transparent rulemaking and everything, sovereign immunity would be strong there for government's liability. But it's not that there's nothing. Like, you and your predecessors have crafted state sovereign immunity, and, you know, we object to parts of it, but that's not today's hearing. I will not go out on that.

[Rep. Martin LaLonde (Chair)]: It's our municipal liability. You're not gonna go out on that? Okay. Alright. Fair enough. Thank you very much, Kevin. Appreciate you for being available. So we'll talk a little bit more about this tomorrow morning, I think. Perhaps I'm a struggle then. After the floor. I am trying to navigate what is Is the informed consent issue something that is here? And I'm going to talk to the chair of Human Services to understand that a little bit better. And maybe we get them a recommendation or not. But let's think about it and we'll think about it overnight and have a discussion and possibly a straw poll tomorrow. And we're adjourned until one when we take up h five and hopefully bring that one home. Thought originally that one, I should say. I originally you said possible straw poll tomorrow afternoon, and now you just change it till Morning, afternoon, whatever. That that's fine. Afternoon's fine too. Yep.