Childs v. Secretary of Health & Human Services

33 Fed. Cl. 556, 1995 U.S. Claims LEXIS 122, 1995 WL 372057
CourtUnited States Court of Federal Claims
DecidedJune 8, 1995
DocketNo. 94-607V
StatusPublished
Cited by7 cases

This text of 33 Fed. Cl. 556 (Childs 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
Childs v. Secretary of Health & Human Services, 33 Fed. Cl. 556, 1995 U.S. Claims LEXIS 122, 1995 WL 372057 (uscfc 1995).

Opinion

OPINION

BRUGGINK, Judge.

This is an action brought pursuant to the National Vaccine Injury Compensation Act (‘Vaccine Act”), 42 U.S.C. §§ 300aa-10 to 300aa-34 (1988 & Supp. V 1993). The matter is before the court on a Motion for Review of the Order of Special Master Millman dismissing the petition as untimely. The matter is fully briefed. Oral argument is deemed unnecessary. For the reasons set out herein, the motion is denied.

BACKGROUND

On February 14, 1991, Karis Childs, a minor child and daughter of petitioners, George G. Childs and Karyn L. Childs, received her fourth diphtheria-pertussis-tetanus (DPT) vaccination, as well as an oral polio vaccine and a haemophilus influenzae type B vaccination. On the evening of February 16, 1991, Karis became stiff, her eyes deviated to the left, and her left arm shook for a few minutes. After being taken to Mary Immaculate Hospital Emergency Room with a 103.8-degree fever, she was diagnosed as having had a probable febrile seizure. It was noted that Karis had received a DPT vaccine two days earlier. Karis had no history of febrile seizures or seizure disorder. She was further observed the next day at Children’s Hospital of the King’s Daughter, but no specific cause of the seizure episode was uncovered.

On September 17, 1991, Karis suffered another seizure and was again taken to the emergency room. Upon further observation at Children’s Hospital of the King’s Daughter, she was diagnosed with “benign occipital epilepsy of childhood,” a temporary seizure disorder, and placed on Tegretol, an anti-seizure medication. Following this seizure, Karis’ electroencephalogram was interpreted as abnormal. On November 4, 1992, while on medication, Karis suffered a seizure and was taken to the emergency room at Arnold Palmer Hospital for Children and Women in Orlando, Florida. The medical records show Karis has developed a history of febrile and afebrile seizures since being placed on Tegretol. After previously noting on June 1, 1993 [558]*558that the seizures were of unknown etiology, Svinder S. Toor, M.D., Karis’ pediatric neurologist, noted on June 22, “1993 that her seizures were “of occipital lobe origin.”

On September 16, 1994, petitioners filed a Petition for Relief under the Vaccine Act, on behalf of Karis. They alleged that Karis suffered an on-Table1 residual seizure disorder (RSD) and encephalopathy as a result of her DPT vaccination on February 14, 1991. They alleged that the onset of symptoms was on February 16, 1991, when Karis suffered a febrile seizure.

On January 26, 1995, the special master granted respondent’s motion to dismiss on the basis that the limitations period had expired. In doing so, the special master rejected the argument that the limitations period, runs from the November 4, 1992 episode, stating that the “discovery doctrine”2 does not apply to § 16(a)(2). She also rejected petitioners’ argument that the November 4, 1992 episode was a “significant aggravation” under § 16(a)(2) because it did not involve a pre-existing condition.

On February 23, 1995, petitioners filed a Motion for Review of Order Granting Motion to Dismiss and a Memorandum of Objections, pursuant to RCFC, App. J, Rules 23, 24, stating that the special master misinterpreted the language “significant aggravation of such injury” in § 16(a)(2). They do not contest the special master’s finding that the discovery doctrine does not apply here.

DISCUSSION

When reviewing a decision by the special master § 12(e)(2) of the Vaccine Act permits this court to set aside any findings that are found to be “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” The sole dispositive issue here is whether the special master correctly applied the statute of limitations provision of the Vaccine Act. This is a question of law to be reviewed under the “not in accordance with law” standard. 42 U.S.C. § 300aa-12(e)(2); See Munn v. Secretary, DHHS, 970 F.2d 863, 870 (Fed.Cir.1992).

The Vaccine Act, in § 16(a)(2), provides that:

[I]f a vaccine-related injury occurred as a result of the administration of such vaccine, no petition may be filed for compensation ... for such injury after the expiration of 36 months after the date of the occurrence of the first symptom or manifestation of onset or of the significant aggravation of such injury....

42 U.S.C. § 300aa-16(a)(2). The date of accrual of the claim is the same milestone used to determine whether petitioners would have a rebuttable presumption of causation from the Vaccine Injury Table (“Table”). Thus, in the ease of a DPT vaccination, a petitioner must show that “the first- symptom or manifestation of onset or of the significant aggravation of such injuries” occurred within three days of administration of the vaccine to have a presumption of causation in a claim for vaccine-related encephalopathy. 42 U.S.C. §§ 300aa-14(a), 300aa-11(c)(1)(C); c. 42 U.S.C. § 300aa-16(a)(2).

Petitioners argue that in this case the thirty-six-month limitations period runs from the seizure episode of November 4, 1992. Respondent counters that the term “significant aggravation” applies only to conditions that pre-existed the vaccination. Because the injury at issue here was not an aggravation of a pre-existing condition but instead was allegedly caused by the vaccination, respondent argues that the action arose as of the first seizure episode in February 1991.

When § 16(a)(2) is considered in isolation, it can reasonably be construed to mean that the limitations period runs from the date of aggravation of an injury caused by the vaccination itself. Omitting words extraneous to [559]*559the plaintiffs’ statutory construction argument, the paragraph reads as follows:

[I]f a vaccine-related injury occurred as a result of the administration of [a] vaccine, no petition may be filed ... for such injury after the expiration of 36 months after the date of ... the significant aggravation of such injury____

Read literally, “such injury” appears to refer to the “vaccine-related injury” mentioned earlier in the same paragraph. The language thus seems to mean that the “injury” and the aggravation are distinct phenomena. Petitioners contend that this construction conveys the statute’s intended meaning. In their view, the seizure episode suffered on February 16, 1991, two days after Karis received the DPT vaccine, was a vaccine-related injury, and it was this injury that was significantly aggravated twenty-one months later, on November 4, 1992.

There are two problems with petitioners’ argument. The first is a factual problem that flows from petitioners’ construction. As the special master found, the February 16, 1991 seizure episode constitutes the occurrence of Karis’ first symptom.

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33 Fed. Cl. 556, 1995 U.S. Claims LEXIS 122, 1995 WL 372057, Counsel Stack Legal Research, https://law.counselstack.com/opinion/childs-v-secretary-of-health-human-services-uscfc-1995.