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

29 Fed. Cl. 132, 1993 U.S. Claims LEXIS 129, 1993 WL 327319
CourtUnited States Court of Federal Claims
DecidedAugust 16, 1993
DocketNo. 90-2570 V
StatusPublished

This text of 29 Fed. Cl. 132 (Chen 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
Chen v. Secretary of the Department of Health & Human Services, 29 Fed. Cl. 132, 1993 U.S. Claims LEXIS 129, 1993 WL 327319 (uscfc 1993).

Opinion

ORDER

AFFIRMING SPECIAL MASTER’S ' DECISION

WIESE, Judge.

This case is before the court on petitioners’ appeal from a decision of the special master, entered April 19, 1993, denying their claim to compensation under the National Childhood Vaccine Injury Act, 42 U.S.C.A. §§ 300aa-l-300aa-34 (West 1991 & Supp.1993), for an alleged “table” injury, i.e., an injury whose occurrence the Vaccine Act presumes was vaccine-caused.1 The claim rests on the contention that, within three days after the administration of a diphtheria-pertussis-tetanus (DPT) vaccine, petitioners’ daughter suffered an encephalopathy — an insult to the brain — that resulted in a significant aggravation of her pre-existing neurological disorder — an en-cephalopathic condition, characterized by psychomotor degeneration, known as Rett syndrome.2

The special master denied relief on the ground that petitioners had failed to establish the claimed encephalopathy and thus, also, the claimed aggravation. “The weight of evidence,” said the special master, “is that the petitioners have confused Julie’s dramatic transition from stage I to stage II of Rett syndrome, which was not encephalitic, with an encephalitic process.” Chen v. Secretary of the Dep’t of Health and Human Servs., No. 90-2570 V, slip op. at 6, 1993 WL 141543 (Fed.Cl.Sp.Mstr. Apr. 19, 1993).

Petitioners challenge this conclusion. They say, in substance, that the special master misread the evidence, much of which they see as standing indisputably in their favor. They contend that this erroneous threshold finding condemns all the rest of the special master’s analysis and thus no part of the decision, either of fact or law, may be accorded finality. Respondent answers by saying that the decision is correct in all respects and should therefore be affirmed.

Oral argument was heard on August 13, 1£>93. At the conclusion of the argument the court indicated that the decision of the special master was correct in its findings of fact — they are supported by substantial evidence — and correct also in its legal conclusion — that petitioners failed to establish any basis for recovery under the terms of the Vaccine Act. The court also indicated, however, that while the special master’s decision warranted affirmance, it also warranted further explanation. It is with this last concern in mind that this Order is written.

I

Petitioners’ daughter, Julie Chen, received her fourth DPT vaccination on July [134]*13430, 1981, at the age of 18 months. Shortly after the administration of the vaccine, Julie became febrile (the fever lasted for three days) and irritable. On the second day following receipt of the vaccine, she began crying in a manner her father described as “very loud and very stressful.” This crying ‘continued for approximately two weeks. At the end of the crying period, Julie was withdrawn and unresponsive and remained so for two to four months. Her reemergence from this distant state was gradual. However, a subsequent medical evaluation, performed at the age of 22 months, revealed that Julie had undergone a severe regression in language and motor development. After this experience, Julie’s deterioration continued and she has since gone on to demonstrate all of the diagnostic criteria associated with Rett syndrome.3

It is upon the circumstances described above that petitioners base their claim. They maintain that these events demonstrate that Julie experienced an encephalopathy immediately following receipt of the vaccine and that this encephalopathy, in turn, hastened the onset of the second stage of her disorder (a stage characterized by the rapid and specific regression of acquired abilities) and/or magnified the extent and degree of her present impairment. Thus, petitioners’ claim is essentially twofold: they allege both an encephalopathy and a significant aggravation of a pre-ex-isting encephalopathic condition. Each condition is recognized as a table injury when the first manifestation or onset of the injury occurs (in the case of the DPT vaccine) within three days of the vaccine’s administration.

II

In his disposition of the claim, the special master issued two rulings. In the first, a bench ruling rendered at the conclusion of the evidentiary proceedings, the special master declared that the evidence, when examined in its entirety, was insufficient to show either that Julie experienced an encephalopathy “in the August time period of 1981 ... or that her condition is worse today than it would reasonably be expected to have been but for the administration of the DPT vaccine____” (Transcript of proceedings of March 5, 1993, at 147). Julie’s symptoms, the special master further noted, “are classical symptoms of the syndrome experienced by 90% or more of the victims.” Id.

In his second decision, the ruling published on April 19, 1993, the special master explained that, “while the bench ruling stands on its own,” the nature of the case warranted further discussion since such discussion might prove useful in the resolution of subsequent claims involving Rett syndrome. This decision then goes on to describe the characteristics of Rett syndrome and concludes by saying that the event which petitioners saw as an encephal[135]*135opathy was more likely the onset of the second stage of Rett syndrome — an event that unfolds in dramatic fashion, akin to an encephalitic intrusion, in approximately 16 percent of Rett syndrome victims.

The difficulty the court has with the special master’s decision is not with what was said — none of that can be faulted — but with what was not said. While the decision holds that there was neither an encephalopathy nor any significant aggravation of a pre-existing encephalopathy, it fails to explain these results and thereby invites misunderstanding. The present appeal is in large measure grounded in such a misunderstanding. Therefore, for the sake of a more complete explanation, we add here the analytical underpinnings that support the special master’s decision.

First, with respect to the claim of encephalopathy, petitioners are correct in saying that persistent inconsolable crying is a clinical sign of an encephalopathy. However, as both the Vaccine Act and the testimony in this case make clear, such evidence, standing alone, is not enough to support a diagnosis of encephalopathy. (“Signs and symptoms such as high pitched and unusual screaming, persistent unconsolable crying ... are compatible with an encephalopathy, but in and of themselves are not conclusive evidence of encephalopathy.” 42 U.S.C.A. § 300aa-14(b)(3)(A)).

Nor is it of aid to petitioners’ case that an electroencephalogram, performed six months after the DPT administration, revealed an encephalopathy. The presumption of vaccine causation that is written into the Vaccine Act is founded on the temporal relationship that exists between the administration of a vaccine and the signs of injury. It is the closeness in time between these events that supports the inference of cause and effect. Therefore, in order to establish a DPT-related table injury, the evidence of that injury must be drawn from clinical signs and symptoms that emerge within three days of the vaccine’s administration. 42 U.S.C.A. § 300aa-14(a). Evidence of encephalopathy drawn from a diagnostic procedure performed six months after the alleged causative event is of little probative value m supporting an inference of a prior vaccine-caused injury.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Cite This Page — Counsel Stack

Bluebook (online)
29 Fed. Cl. 132, 1993 U.S. Claims LEXIS 129, 1993 WL 327319, Counsel Stack Legal Research, https://law.counselstack.com/opinion/chen-v-secretary-of-the-department-of-health-human-services-uscfc-1993.