When Does a Vaccine Injury Legally Begin?

In vaccine injury cases, timing is everything. The Vaccine Act gives injured individuals only three years from the first symptom or manifestation of onset of injury to file a claim. But what counts as the “first symptom” or “manifestation”? The Federal Circuit’s 2007 decision in Markovich v. Secretary of Health and Human Services, 477 F.3d 1353 (Fed. Cir. 2007) answered that question and continues to shape how special masters determine timeliness under the Vaccine Injury Compensation Program (VICP).

The Facts: From Subtle Signs to Seizures

Michael and Melissa Markovich’s two-month-old daughter Ashlyn received a series of routine childhood vaccinations—including DTP, polio, and Hib—on July 10, 2000. That same day, her parents noticed she began blinking rapidly. They assumed she was tired and thought little of it.

Weeks later, on August 30, 2000, Ashlyn suffered a severe 20-minute seizure and was taken to the emergency room. Doctors diagnosed her with a grand-mal seizure disorder, and additional seizures followed throughout the next year. When the Markoviches filed their VICP petition in August 2003, they alleged the July 2000 vaccinations caused her chronic seizure disorder.

The government argued the claim was filed too late. Because Ashlyn’s rapid eye-blinking began on the same day as her vaccinations, those movements were the first “symptom” of the injury. The parents, however, believed the true onset was the August 2000 seizure, the first time anyone realized something was seriously wrong.

The Legal Question: What Is “First Symptom or Manifestation of Onset”?

The Vaccine Act bars claims filed more than 36 months after “the occurrence of the first symptom or manifestation of onset” of the injury (42 U.S.C. § 300aa-16(a)(2)).

The parents urged the court to apply a subjective flexible standard—the clock should start only when a reasonable parent would recognize a meaningful injury. The government, by contrast, argued for a more objective medical standard—the clock starts when the first sign recognizable to the medical profession appears, even if parents don’t yet understand its significance.

The Court’s Ruling

The Federal Circuit sided with the government. The court held that the first symptom and manifestation of onset are distinct. A symptom may be subtle or nonspecific, while a manifestation is more obvious. Under the statute’s disjunctive wording—“first symptom or manifestation”—the limitations period begins with whichever occurs first.

Ashlyn’s rapid eye-blinking, though mild and initially overlooked by her parents, was medically recognized as seizure activity. Her treating neurologist and even the family’s expert testified that those movements represented mild seizures. Because the eye-blinking was “objectively recognizable as a sign of a vaccine injury by the medical profession at large,” the three-year period began July 10, 2000, not the date of her hospitalization.

Key Reasoning

1. Objective Standard.
   The court rejected any rule that would depend on a parent’s knowledge or suspicion. A subjective test would produce inconsistent results depending on each family’s medical sophistication. The Vaccine Act’s timing rule applies equally to all petitioners and must be interpreted uniformly.

2. Subtle Symptoms Count.
   The decision drew on Brice v. HHS and Whitecotton v. HHS, where the courts held that even subtle or confusing symptoms start the clock. The Act deliberately begins the period before the petitioner knows the medical cause. Congress chose finality over flexibility.

3. Strict Construction of Sovereign Immunity.
   Because the VICP statute waives the federal government’s immunity, courts must construe the limitations period strictly. Equitable tolling is rarely available, so missing the window—no matter how sympathetic the facts—bars recovery.

Lessons Learned for Vaccine Petitioners

1. The Clock Can Start Before You Know an Injury Exists.
Under Markovich, the statute of limitations may begin with the earliest abnormal sign that the medical community would recognize as related to the alleged injury—even if it seems trivial or harmless to a parent. Waiting for a diagnosis can be fatal to a claim. The symptom must be something that, looking back, medicine can identify as part of the injury process — even if no one recognized it at the time.

But the court also acknowledged that not every vague or ordinary behavior counts. There has to be an identifiable medical “sign,” not just a normal variant of development or health. Special masters have reasoned that when early signs are so non-specific or fleeting that even trained physicians would not reasonably see them as a disease process, then the statute should not start until a clearer “manifestation” occurs. For example, in Wilkerson v. HHS and Montague v. HHS, special masters held that occasional fussiness, mild sleep issues, or a single fever episode were too transient to constitute a manifestation of a neurological injury. The “manifestation of onset” in those cases was later — when consistent, recognizable clinical symptoms (like loss of language or seizures) developed.

2. “Symptoms” and “Manifestations” Are Different.

The Federal Circuit emphasized that Congress used “symptom or manifestation” deliberately. That means the statute of limitations starts at whichever happens first:

• The first symptom (a medically recognizable sign, even if mild or misunderstood), or

• The first manifestation (the point when the condition is obvious or diagnosed).

So if a child first shows subtle neurological signs, the three-year clock begins then, not when a doctor finally diagnoses the disorder months or years later. And if the injury’s symptoms are gradual, non-specific and/or medically meaningless, for example in an autism case, then the analysis turns instead to when the first manifestation took place.

A symptom refers to any evidence of disease or impairment in the function of a bodily organ,” including signs that are not yet severe, not yet diagnosed, and possibly not even recognized by the patient or parents. In Markovich, the baby’s rapid eye-blinking right after vaccination counted as a symptom. Even though her parents didn’t know it was serious, medical experts later identified it as seizure activity — an early sign of her neurological condition.

So, the “symptom” is the earliest detectable sign, objectively recognizable by the medical profession, even if no one yet connects it to an injury.

But manifestation occurs when the illness or injury becomes apparent to a layperson or clinically obvious to medical professionals — when the disease has effectively “declared itself.”

It’s the point where the abnormal signs are no longer vague, but form a recognizable pattern that indicates something is wrong. In Markovich, that would have been the later grand-mal seizure that led to diagnosis.

3. Medical Documentation Matters.
Every note in the medical chart—especially early complaints—can determine timeliness. Petitioners should preserve contemporaneous records and consult medical experts early to identify when the first medically-recognizable symptom occurred. This is because the focus isn’t on the injured person’s perception of injury but on what a qualified medical observer could have recognized.

4. Expert Testimony Cuts Both Ways.
In Markovich, the family’s own neurologist linked the blinking to seizures, which helped prove causation but doomed timeliness. Lawyers must coordinate expert opinions carefully so that proving one element does not undermine another.

5. File Sooner Rather Than Later.
Given the unforgiving three-year deadline, potential claimants should not wait for certainty. Filing preserves the claim while allowing time to refine medical proof.

Takeaway

The Markovich case teaches a hard but essential truth: under the Vaccine Act, the definition of “first symptom or manifestation of onset” depends not on when an injury feels serious, but on when medicine could objectively recognize it. Even subtle, seemingly harmless signs may start the clock. For families pursuing vaccine-injury compensation, vigilance about early symptoms—and prompt legal action—are the best safeguards against losing a claim on timing grounds.