Camery v. Secretary of the Department of Health & Human Services

42 Fed. Cl. 381, 1998 WL 896982
CourtUnited States Court of Federal Claims
DecidedDecember 8, 1998
DocketNo. 90-2585V
StatusPublished
Cited by363 cases

This text of 42 Fed. Cl. 381 (Camery v. Secretary of the Department 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
Camery v. Secretary of the Department of Health & Human Services, 42 Fed. Cl. 381, 1998 WL 896982 (uscfc 1998).

Opinion

OPINION and ORDER

FUTEY, Judge.

This vaccine case is before the court on respondent’s motion to review and set aside the special master’s award of compensation for a vaccine-related death suffered by Phillip Bobby Camery (Bobby), on whose behalf petitioner, Mrs. Coradean Camery (petitioner), brought this action. On August 7, 1998, the special master determined that petitioner was entitled to compensation under the National Childhood Vaccine Injury Act (Vaccine Act), 42 U.S.C. §§ 300aa~l to 300aa-34 (1994), as amended 42 U.S.C.A §§ 300aa-l to 300aa-34 (West 1998). Respondent maintains that the special master erred as a matter of law by finding that Bobby experienced jerking episodes on the evening he received his diphtheria-pertussis-tetanus (DPT) vaccine. Respondent also claims that the special master’s decision to accept petitioner’s testimony regarding the occurrence of Bobby’s jerking episodes on the evening of his DPT vaccination was arbitrary and capricious. Petitioner argues that the special master did not err as a matter of law, and that his decision to accept petitioner’s testimony over Bobby’s medical records was not arbitrary and capricious.

Factual Background

Bobby was born on August 14, 1949, at Our Lady of Mercy Hospital, in Mariemont, Ohio. On August 23, 1949, Bobby was discharged from the hospital, listed in “good” condition. As an infant Bobby received medical care from Frederick Gross, M.D. Although Dr. Gross’ medical records regarding Bobby are missing from the record, other medical records provide that Bobby was generally healthy, except for frequent colds, broncho pneumonia at six weeks, and bronchitis at three months of age. According to Bobby’s medical records, he was “apparently well and normal until February 14, 1950” when, during bottle-feeding, he experienced “his first spasm, consisting of tonic contractions of the flexors of his arms.” Camery v. Secretary of DHHS, 90-2585V, slip. op. at 4. (Fed.Cl.Spec.Mstr. Aug. 7, 1998).

During a visit to the clinic at the Children’s Hospital in Cincinnati, Ohio, on March 3, 1950, Bobby experienced several convulsive seizures, exhibiting a fluttering of his eye lids, a rolling back of his eyes in his head, and twitching in his face. On that same day, Bobby entered the infant ward of the Children’s Hospital to undergo diagnostic studies of these seizures.

During his hospitalization, Bobby continued to experience spasms. Over a period of several days, medical personnel administering to Bobby noticed a fluttering of his eye[383]*383lids, a tenseness in his arms, jerking movements in his arms, slight spasms in his arms and head, a clenching of his fists, and a staring gaze. Id. at 4-5. On March 11, 1950, Bobby was discharged from the Children’s Hospital, with no change listed in his condition. Although Bobby’s physicians were unable to determine the cause of his condition, they surmised it was idiopathic epilepsy. His physicians recommended subsequent observation at the Children’s Hospital clinic.

Bobby received recurrent medical treatment at the Children’s Hospital clinic for his seizures from March 1950 to September 1956. He also was placed on medication to help control his seizures. Despite this medication, Bobby continued to experience seizures, generally before falling asleep or while asleep.

In October 1957, the Camery family moved to Houston, Texas. Petitioner applied for special placement of Bobby in a class for mentally retarded children at the Houston Independent School District (the District). On October 18,1957, an assistant psychologist with the District examined Bobby. The assistant psychologist concluded that Bobby was mentally retarded, and recommended that the District place Bobby “in a class for the mentally retarded at the readiness level.” Camery, No. 90-2585V, at 5.

On November 6, 1957, Bobby was evaluated by physicians at the Blue Bird Circle Children’s Clinic for Neurological Disorders (Children’s Clinic). Petitioner informed the examining physician that Bobby developed normally until he was five months old. Petitioner also informed the examining physician that after Bobby’s first DPT immunization, he suffered “a febrile episode that lasted two days, with marked irritability.” Id. Petitioner further informed Bobby’s physician that Bobby then appeared normal for two weeks, after which he began having generalized convulsions, with thirty-two seizures occurring in the first twenty-four hours. The treating physician concluded that Bobby’s condition included “brain damage, secondary to pertussis immunization at five months of age.”1 Bobby received treatment at the Children’s Clinic for his seizures until August 1959. Other physicians at the Children’s Clinic that treated Bobby adopted the diagnosis of “post-pertussis immunization perive-nous encephalitis,” or “post-immunization encephalopathy.” Id.

As Bobby grew older, his behavior became uncontrollable and destructive, requiring petitioner to place him into the Austin State School in 1959. In July 1971, petitioner transferred Bobby to the Richmond State School. The medical staff diagnosed Bobby with “mental retardation, post-pertussis immunization.” Id. at 6. Bobby remained at the Richmond School until his death on May 29, 1997. He died of acute aspiration pneu-monitis, secondary to chronic interstitial lung disease.

On October 1,1990, petitioner filed a claim on behalf of Bobby under the Vaccine Act. In an amended petition filed on July 23, 1997, petitioner alleged Bobby died from the residual effects of a seizure disorder that he sustained within the time allotted by the Vaccine Injury Table. Specifically, petitioner claimed that Bobby exhibited jerking spells with periods of unresponsiveness, stiffness, and other symptoms, all within hours of his January 28, 1950 DPT vaccination. Camery, No. 90-2585V, at 1. Respondent alleged that petitioner was not entitled to compensation because Bobby’s medical records did not show he suffered the onset of his seizures within three days, the time period set forth in the Vaccine Injury Table. Id. at 1-2. In the alternative, respondent alleged that even if the special master credited the factual testimony in this case regarding Bobby’s symptoms prior to the recorded onset of his disorder, the factual testimony did not provide convincing evidence of any seizures. Id. at 2.

Special Master Elizabeth Wright conducted an evidentiary hearing on March 25, 1996.2 At the hearing, petitioner testified [384]*384that Bobby received his first DPT vaccination on January 28,1950, at a clinic organized by the county at the Madison School near the Camery’s home. Petitioner also testified that Bobby became ill with a fever that night, and began throwing up his milk. More importantly, she claimed that Bobby exhibited “little jerking spells,” in which he would “jerk his arms, ... have a dull look in his eyes,” and appeared to be stiff. Id. at 6. Petitioner further claimed that Bobby was irritable, cried, and kept petitioner and her husband up all night.

Petitioner testified that she called Dr. Gross on January 29, 1950, regarding Bobby’s condition. Petitioner claimed that Dr. Gross examined Bobby on January 30, 1950. Petitioner asserted that when Dr. Gross performed a house call on that day, 1950, she alerted him of Bobby’s jerking movements, but could not recall if Dr.

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42 Fed. Cl. 381, 1998 WL 896982, Counsel Stack Legal Research, https://law.counselstack.com/opinion/camery-v-secretary-of-the-department-of-health-human-services-uscfc-1998.