Broekelschen v. Secretary of Health & Human Services

89 Fed. Cl. 336, 2009 WL 3674575
CourtUnited States Court of Federal Claims
DecidedAugust 18, 2009
DocketNo. 07-137 V
StatusPublished
Cited by24 cases

This text of 89 Fed. Cl. 336 (Broekelschen v. Secretary of Health & Human Services) is published on Counsel Stack Legal Research, covering United States Court of Federal Claims primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Broekelschen v. Secretary of Health & Human Services, 89 Fed. Cl. 336, 2009 WL 3674575 (uscfc 2009).

Opinion

OPINION AND ORDER1

GEORGE W. MILLER, Judge.

Petitioner, Dr. Peter Broekelschen, seeks review of a decision by Special Master Christian J. Moran dated February 4, 2009, denying compensation under the National Vaccine Injury Compensation Program, 42 U.S.C. §§ 300aa-1 to -34 (“Vaccine Act”). Dr. Broekelschen alleges he was injured by an influenza vaccine he received on October 28, 2005. He filed for compensation on March 1, 2007. The special master denied relief on the ground that Dr. Broekelschen failed to prove by a preponderance of the evidence that the vaccination had caused his injury. Broekelschen v. Sec’y of Health & Human Servs., No. 07-137V, 2009 WL 440624 (Fed.Cl.Spec.Mstr., Feb. 4, 2009), at *1 (“Dec.”).

Petitioner timely filed a motion for review under § 300aa-12(e) of the Vaccine Act, claiming that the special master’s decision was not supported by the record and thus was arbitrary and capricious. Petitioner’s Motion for Review (docket entry 68, March 5, 2009) (“Pet.”). In the alternative, petitioner claims that the special master’s decision imposed an improper standard of causation. Id. at 2. Petitioner asserts that the special master’s decision should be reversed or remanded to the special master for further consideration. Id. at 50. Respondent argues that the special master applied the correct standard of causation and the decision is properly supported by the record. Respondent’s Memorandum in Response to Petition[340]*340er’s Motion for Review (docket entry 73, April 3, 2009) (“Resp.”).

BACKGROUND

Dr. Broekelschen was born on June 18, 1942 and is now a physician specializing in internal medicine and gastroenterology. Pet. at 3. On October 28, 2005, Dr. Broekelschen received a dose of the flu vaccine from his primary physician, Dr. John Storch. Dec. at 2. The parties apparently agree that any health issues Dr. Broekelschen experienced prior to the date of his flu vaccine are not relevant to the injury at issue in this case. Id.

On December 16, 2005, Dr. Broekelschen was admitted to Hoag Memorial Hospital Presbyterian with sudden severe chest pain along with pain in his arms, fingers, neck, and left scapula. Id. Dr. Broekelschen remained in the hospital for almost two weeks, until December 29, 2005. Id. During his hospitalization, doctors administered tests in an attempt to diagnose Dr. Broekelschen’s condition. Id. at 9-11. However, the treating physicians never formed a consensus on what was causing his injury. In fact, various doctors expressed multiple possible causes, including transverse myelitis and anterior spinal artery syndrome. Id. at 13. Both conditions are spinal cord injuries that are difficult to diagnose and produce many of the same symptoms. Id. at 6-8. Transverse myelitis is a rare condition caused by inflammation in the spinal cord. Id. at 8. Anterior spinal artery syndrome is caused by a blocked blood vessel at the rear of the spinal cord resulting in reduced blood flow. Id. Blood vessel problems are also referred to as “vascular” problems or “ischemia.” Id. Damage to the spinal cord is also called “myelopa-thy.” Id. Both transverse myelitis and anterior spinal artery syndrome are included in the term myelopathy. Id. Unfortunately, as the parties agree, doctors are often imprecise when referring to the spinal conditions at issue, even in written reports, and often use the term transverse myelitis when they are referring generally to a spinal cord injury, instead of using the more general term, mye-lopathy. Id. at 7. This makes the interpretation of hospital records difficult. While in the hospital, petitioner was treated for both conditions. Id. at 16-17. None of the treating physicians testified at the hearing on this matter.

One distinguishing factor between transverse myelitis and anterior spinal artery syndrome is a condition called proprioception. Id. at 12. Proprioception refers to a person’s own sense of the relative position and movement of his body parts. Id. If a patient’s proprioception is intact, the patient is more likely to suffer from anterior spinal artery syndi’ome. Id. On the other hand, a deficiency in proprioception makes the diagnosis of transverse myelitis more likely. There is conflicting evidence in the record about the state of petitioner’s proprioception. Several notations in petitioner’s medical records from his hospitalization note that petitioner’s pro-prioception was intact. Id. However, at the hearing petitioner testified that during his hospitalization he was told by treating neurologists that his proprioception was abnormal. Id. Other medical records, including the post-hospital discharge, contain notes that indicate impaired proprioception. Id.

Although Dr. Broekelschen’s condition had improved when he was discharged from the hospital, he had not fully recovered by the time of the special master’s decision. Id. at 3. Dr. Broekelschen filed his petition with this court on March 1, 2007. Petitioner also filed a report alleging that the flu vaccine caused him to suffer transverse myelitis. His report included medical records from his hospitalization as well as a report from a doctor he retained, Dr. Lawrence Steinman. Respondent denied that the flu vaccine caused Dr. Broekelschen to suffer transverse myelitis. Respondent also presented a report from a retained doctor, Dr. Benjamin Greenberg. Both parties filed supplemental reports from their experts along with the medical articles on which their experts relied. A hearing was held on February 12-14, 2008, with three testifying witnesses, Dr. Broekel-schen, Dr. Steinman, and Dr. Greenberg. After the hearing, the special master issued an order proposing a process for choosing an independent neuroradiologist to review petitioner’s MRI results and submit a report “explaining whether petitioner suffers from [341]*341transverse myelitis or anterior spinal artery syndrome” (docket entry 63, Nov. 21, 2008). Petitioner filed a status report opposing the special master’s proposal (docket entry 64, Nov. 24, 2008) and no independent neurora-diologist reviewed the record.

On December 17, 2008, the special master filed an opinion granting petitioner an award of attorneys’ fees and costs and finding that Dr. Broekelschen possessed a reasonable basis and acted in good faith in claiming that the flu vaccine caused him to suffer transverse myelitis. Broekelschen v. Sec’y of Health & Human Servs., No. 07-137V, 2008 WL 5456319 (Fed.Cl.Spec.Mstr., Dec. 17, 2008). On February 4,2009, the special master issued his decision denying entitlement. Petitioner timely moved for review of that decision on March 5,2009.

DISCUSSION

The evidence in this case is in conflict concerning the proper diagnosis of petitioner’s injury. Since petitioner’s medical records have conflicting opinions on the diagnosis, both parties brought in experts to interpret the records. Petitioner’s expert, Dr. Lawrence Steinman, testified that the diagnosis should be transverse myelitis caused by the flu vaccine. Defendant’s expert, Dr. Benjamin Greenberg, testified that the diagnosis should be anterior spinal artery syndrome caused by a vascular event. The two parties do agree, however, that petitioner suffered a spinal injury about six weeks after receiving the flu vaccine.

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Related

Tarsell v. Secretary of Health and Human Services
133 Fed. Cl. 782 (Federal Claims, 2017)
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101 Fed. Cl. 385 (Federal Claims, 2011)
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Broekelschen v. Secretary of Health & Human Services
618 F.3d 1339 (Federal Circuit, 2010)

Cite This Page — Counsel Stack

Bluebook (online)
89 Fed. Cl. 336, 2009 WL 3674575, Counsel Stack Legal Research, https://law.counselstack.com/opinion/broekelschen-v-secretary-of-health-human-services-uscfc-2009.