Cucuras v. Secretary of Department of Health & Human Services

26 Cl. Ct. 537, 1992 U.S. Claims LEXIS 328, 1992 WL 177384
CourtUnited States Court of Claims
DecidedJuly 10, 1992
DocketNo. C-91-994V
StatusPublished
Cited by247 cases

This text of 26 Cl. Ct. 537 (Cucuras v. Secretary of Department of Health & Human Services) is published on Counsel Stack Legal Research, covering United States Court of Claims primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Cucuras v. Secretary of Department of Health & Human Services, 26 Cl. Ct. 537, 1992 U.S. Claims LEXIS 328, 1992 WL 177384 (cc 1992).

Opinion

ORDER

HARKINS, Senior Judge:

Petitioners, on behalf of their daughter Nicole Cucuras, seek review in the United States Claims Court under the National Vaccine Injury Compensation Program (the Program) of a special master’s unpublished decision, filed December 30, 1991, that followed a bench ruling on November 22, 1991. For convenient reference, the special master’s decision and bench ruling are attached to this order.

The Program was established in 1986 as part of the National Childhood Vaccine Injury Act, Pub.L. No. 99-660, tit. III, § 311(a), 100 Stat. 3743, 3758. Amendments in 1987, 1988, 1989, 1990, and 1991 [539]*539changed substantially procedures applicable to the functions of special masters, and review of decisions of special masters. Provisions governing the Program, as amended, are contained in 42 U.S.C.A. §§ 300aa-10 through 300aa-34 (West 1991 & Supp.1992). For convenience, further reference to the Program in this order will be to the relevant subsection of “42 U.S.C.A. § 300aa—__” 1

Nicole Cucuras was born on February 9, 1989, at Mansfield General Hospital, Mansfield, Ohio.

On February 26, 1989, she experienced a choking episode. Petitioners called the rescue squad and had Nicole admitted to Mansfield General Hospital. Nicole was observed overnight and released the next day with an apnea monitor.

Nicole received her first DTP vaccination on Saturday, April 8, 1989.

The record is ambiguous as to events between the vaccination on April 8, 1989, and the next visit to the pediatrician on May 5, 1989. In their affidavit filed with the petition and in their testimony, petitioners state Nicole cried inconsolably on the night of the vaccination and began a high-pitched scream. On April 9, 1989, petitioners allege, Nicole began movements that were described as jerks and startle-type reactions. By Friday, April 14, 1989, these movements were worse, and a telephone call was made to the pediatrician’s office, during which the nurse relayed a message from the doctor that babies startle easily and the parents should not worry. A written record of this telephone conversation was not made.

On May 5, 1989, Nicole was taken to her pediatrician for a regular checkup. The medical records describe her condition as “startles easily,” “hand thumping,” “vomiting and choking easily.” The pediatrician, according to petitioners’ testimony, said the actions were “a startle reflex” and they were not “to worry about anything.” Her condition appeared to be within normal limits.

On May 7, 1989, Nicole awoke from her sleep, stiffened, and started gasping for breath. Petitioners called the rescue squad who transported Nicole to Mansfield General where she was admitted. An electroencephalogram (EEG) performed on May 8, 1989, was abnormal, suggesting “the potential for focal and generalized seizure disorder.” A CT scan of the head performed the following day was normal.

Diagnosis and treatment of Nicole’s seizures after the vaccination involved three hospitalizations: Mansfield General Hospital, May 7-10, 1989; Columbus Children’s Hospital, May 10-27, 1989; and Cleveland Clinic Foundation, July 4-12, 1989. Petitioners first learned that a seizure disorder was involved when she was at Mansfield General.

At each hospitalization, medical history statements were prepared on the basis of information provided in part by petitioners. These statements are part of the medical records. The medical records contain items that are inconsistent, or conflicting, with regard to information relating to the onset of Nicole’s seizure-like activity.

In addition to ambiguities as to the onset of seizure activity, the medical records reflect diagnoses of infantile spasms and hypsarrhythmia, hypertension and a mild diffuse encephalopathy. Expert witnesses from both parties agree with the diagnosis of infantile spasms. Nicole’s seizure disorder continues, and it is intractable to anticonvulsant medication. She has been prescribed Mogadon, Phenobarbital, Depacote and ACTH. Her development continues to be delayed.

On March 7, 1991, petitioners filed a claim under the Program alleging that Nicole suffered a residual seizure disorder and an encephalopathy following the DTP [540]*540vaccination on April 8, 1989, “within the time set forth in the Vaccine Injury Table.”

Trial was held on November 22, 1991. The theory of the case was alternatively pleaded, but it was principally presented as a “Table Case,” where causation of Nicole’s disorder would be presumed if onset occurred within 72 hours of vaccination.

At the start of the trial, the special master commented on the state of the medical records. His statement included:

The reason that we are holding this hearing today is because in reviewing the records, it was my impression that the most specific references to onset of seizure activity dated the onset to about a week after the DPT shot. That would not make it a table injury and would raise serious questions about actual causation.
There is a rule of law which is applied generally, and which has been applied by this Court to Vaccine Act cases, which says that, generally speaking, written documents, written records, particularly contemporaneous records, are entitled to greater weight than oral testimony. There are exceptions to that rule and the Court needs to hear the testimony to see whether it is persuaded that, notwithstanding the references, particularly the early records, to a later date of onset, that the seizures actually commenced, as the parents have alleged, on the day following the DPT vaccination.
So, the Court is going to listen carefully and then we will have to make a determination as to whether it should apply the general rule, which is to give greater weight to the written records, or whether the parents have overcome that by showing that those written records do not accurately reflect what happened. So your testimony is important to me.

After the trial, the special master found there was not a preponderance of the evidence that Nicole sustained a seizure disorder within the three day time period. This finding was based on the conclusion that the evidence in the written medical records was too strong to be overcome by contrary testimony of the parents. The special master also concluded that Nicole’s present condition had not been shown by a preponderance of the evidence to be caused by the vaccine.

In reaching his decision on causation, the special master gave greater weight to the report of the National Academy of Sciences, Institute of Medicine (IOM Report), than he gave to the testimony and opinion of petitioners’ experts. The IOM report concluded: “The evidence does not indicate a causal relation between DPT vaccine or the pertussis component of DTP and infantile spasms.”

The IOM report was a product of an investigation authorized by Congress when the Program was established in 1986. Section 312(e) of Public Law 99-660 provided that the Institute of Medicine should investigate, inter alia, the relationship between pertussis vaccine and infantile spasms.

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26 Cl. Ct. 537, 1992 U.S. Claims LEXIS 328, 1992 WL 177384, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cucuras-v-secretary-of-department-of-health-human-services-cc-1992.