Neurological complications following COVID-19 vaccination: The Kalisz Court cannot find an expert

The issue of compensation for neurological complications after vaccination against COVID-19 reveals fundamental problems in the functioning of justice, the availability of expert cognition and the state's work for the consequences of vaccination.

No expert, suspended case

Before the Kalisz territory Court there is simply a case of 19-year-old resident of the territory of Łódź, who demands the Treasury – the Minister of wellness – to compensate PLN 201 1000 for alleged neurological complications after receiving a vaccine against COVID-19.

A young female claims that after vaccination she suffered severe intellectual and neurological changes: “it does not function normally, it is extinguished, sad, anxious and lonely due to the fact that it avoids company.”

The case is deadlocked due to deficiency of an expert who could clearly measure the causal link between vaccination and deterioration of health. According to the press secretary of the Kalisz territory Court, neojudge Marek Urbaniak:
"The court has requested a designated institute, but it has been refused, so there are inactive no appointed stakeholders".

Neurological complications following COVID-19 vaccination: Kalisz Court cannot find an expert 2

Expert cognition incapable to Acquire

The case, according to the court, has "a character hard in substance, multi-threaded and demanding expertise in law and neurology". It was stressed that Pfizer’ s product characteristics alone were 730 specialist medical data pages.

The investigation examined the parties and collected data from, among others, the Office for Registration of Medicinal Products, Medical Products and Biocidal Products. However, the decisive component – the expert opinion – remains unattainable.

Voluntary vaccination – disputed liability

The Treasury, represented by the lawyer General of the Republic of Poland, requested that the action be dismissed, indicating that vaccination was voluntary. "The National Vaccination Programme was adopted by a resolution of the Council of Ministers, which (...) is not the origin of universally binding law," the suspect argues.

Moreover, the Treasury suggests that liability may be borne by another entities, including the vaccine manufacturer, medical facility or individual administering it.

Without experts – without a decision

Plenipotentiaries of the parties were called upon to appoint a candidate for a neurology expert gathering the conditions of impartiality and appropriate qualifications. Neither organization did so, leaving the initiative to the court.

Moreover, the State Treasury agent has previously excluded certain institutions, refusing to participate as an expert. The proposed institute refused to give an opinion to the court.

As a result, although the case started last December, it is suspended – without crucial evidence that could find its fate.

Consequences for justice and citizens

The situation illustrates a serious problem: The deficiency of availability of independent experts in post-vaccination cases may de facto prevent citizens from pursuing their rights in court. Under conditions where the State organises a vaccination operation, while avoiding liability for side effects, the citizen is deprived of effective legal protection.

The case law of the Constitutional Court and the European Court of Human Rights in Strasbourg previously expressed a akin position. On Dubetska and others v Ukraine (complaint No 30499/03), ETPCz stressed that the State has a affirmative work to warrant effective wellness and life protection measures under public medical interference.

In turn Judgment of the Court of Appeal in Warsaw of 6 July 2021, Case I ACa 437/20, confirms that the liability of the State Treasury may besides arise from interior administrative acts where they have produced effects on citizens.

Summary

The Kalisz case is simply a precedent in which the court, despite the parties' activity and advanced evidence, cannot take a decision on grounds of Structural deficiency of expert staff capable of independent medical and legal analysis.

This in turn leads to fundamental questions about the functioning of the regulation of law and the protection of the individual in a judicial process – in peculiar erstwhile the suspect is the State Treasury itself.