Dickerson v. Secretary of Department of Health & Human Services

35 Fed. Cl. 593, 1996 U.S. Claims LEXIS 94, 1996 WL 296232
CourtUnited States Court of Federal Claims
DecidedMay 21, 1996
DocketNo. 91-204V
StatusPublished
Cited by73 cases

This text of 35 Fed. Cl. 593 (Dickerson v. Secretary of 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
Dickerson v. Secretary of Department of Health & Human Services, 35 Fed. Cl. 593, 1996 U.S. Claims LEXIS 94, 1996 WL 296232 (uscfc 1996).

Opinion

OPINION

MEROW, Judge.

This matter comes before the Court on Petitioner’s Motion for Review of Special Master John F. Edwards’ dismissal of her claim for compensation under the National Childhood Vaccine Injury Act of 1986, as amended, 42 U.S.C. §§ 300aa-l-34 (“Vaccine Act” or “Act”). Petitioner seeks compensation for injuries allegedly resulting from the administration of a DTP vaccination. After careful review of the record presented, it is concluded that this matter is to be remanded for farther consideration pursuant to 42 U.S.C. § 300aa-12(e)(2)(C).1

I. FACTUAL BACKGROUND

Petitioner, Ms. Betty L. Dickerson, filed a claim on behalf of her daughter Shakia Tany-ka Dickerson (Shakia) on January 29, 1991. Shakia was bom on October 31,1984 at Saint Joseph Hospital in Towson, Maryland and was considered to be generally healthy at that time. Ms. Dickerson had experienced an uneventful pregnancy and delivered by caesarean section. At Shakia’s first pediatric visit on December 10,1984, a physician found her to be healthy and developing normally.

When Shakia was approximately 2 and lk months of age, on January 17, 1985, she received her first administration of the diphtheria-tetanus-pertussis (“DTP”) vaccine. The vaccine was administered at the Pediatric Outpatient Clinic of St. Joseph Hospital. Both of Shakia’s parents were present.

Shakia’s mother has submitted a sworn affidavit stating that Shakia began “shaking very hard” for some 40 minutes immediately after the administration of the DTP vaccine. Ms. Dickerson states that she and Shakia’s father, George Thompson, were asked to remain at the hospital some 50 minutes until the shaking episode subsided and before hospital staff gave them the permission to take Shakia home. Ms. Dickerson maintains that she had never seen Shakia behave this way previously. Although Petitioner states that hospital personnel may recall this episode, she did not produce any medical records documenting this assertion. Further, she explains that Shakia’s father is “estranged” and therefore she has not been able to obtain his testimony.

Four days later, on January 21,1985, Petitioner again observed behavior that she [595]*595found to be remarkable when Shakia awakened at approximately 6:00 am for a feeding. She noticed that Shakia’s eyes were “rolling back in her head” and that she would not hold her head steadily. Petitioner claims that when she tried to lay Shakia down after her feeding, Shakia experienced what she terms as a seizure which lasted about 15 minutes. Petitioner called an ambulance, however the episode had concluded by the time the paramedics arrived.

Then again, about one hour later at approximately 7:27 am, Ms. Dickerson noted what she described as another seizure. This time she had an ambulance take Shakia to the emergency room at Saint Joseph Hospital.

While at the hospital, Shakia was diagnosed with afebrile seizure disorder and was prescribed 7.5 mg Phenobarbital twice a day to control the seizures. Medical records from Saint Joseph Hospital’s inpatient pediatric unit recorded that Shakia acted like light “bothers [her] eyes” and that she exhibited jerking of all extremities with each seizure episode as well as increased eye-blinking after the seizures. Upon discharge, Shakia was prescribed 8 mg Phenobarbital twice a day.

On March 7, 1985, Shakia again experienced multiple episodes of jerking movements lasting a couple of minutes followed by periods of lethargy and developed a 101.2 degree fever. Petitioner brought Shakia to Saint Joseph Hospital. Upon admission she was given 15 mg of Phenobarbital. Shakia was discharged on March 11,1985.

Shakia received a diphtheria-tetanus vaccine on March 18, 1985. Medical records taken subsequent to the aforementioned vaccinations indicate that Shakia’s seizure histo-xy “coincides with getting DTP.” Pet.’s Exh. D at 23. Records of pediatric visits from April 15, 1985 through 1991 document that Shakia regularly experienced seizure episodes. Pet Exh. D at 11, 13-14, 17 and 86; Pet.’s Affid., Pet.’s Exh. E at 2. Petitioner explained in October, 1995 that regular seizure activity continued to occur at the frequency of two to three episodes per week. Pet.’s Expert Decl. at 3.

Throughout the years the medical records indicate that seizures would be marked by shaking, twitching, loss of head control, eyes rolling back into her head, increased eye blinking or unresponsive staring followed by prolonged screaming. Pet.’s Exh. D, at 32. Further, an EEG performed on Shakia on January 27, 1989 was interpreted as “mildly abnormal ... due to the presence of epilepti-form discharges in the left central region ... [commonly seen as] ... a so called benign rolandic epilepsy of childhood.” Pet.’s Exh. D96.

Shakia took medication to control these symptoms for approximately seven years. First prescribed Phenobarbital during her January, 1985 hospitalization, Shakia continued taking this medication until July 31,1989 at which time her physician prescribed Dilan-tin to control the seizure activity. The records indicate that she continued on Dilantin throughout 1992. Pet.’s Exh. L4. Currently Shakia does not take anti-convulsive medication. See Pet.’s Expert Decl. at 3.

The effects of this seizure disorder, according to Petitioner, have been severe and continue to affect Shakia to this day. Shakia, now eleven years old, has a short attention span and continues to experience serious academic difficulties. Her report cards consistently note that she is working below grade level and is functioning in a “below average” capacity in this work. See Pet’s Exh. 0. Shakia has needed continuous tutoring which Petitioner documents from September 1990 through June 1994. Pet.’s Exh. P2. Even with the tutoring, Shakia has progressed only slightly. Ms. Dickerson states that the cost of Shakia’s tutoring as well as other costs incurred as a result of Shakia’s illness have totalled approximately $3,413.36. Pet.’s Decl. at 2-3.

II. THE COMPENSATION PROCEEDINGS

In her petition for compensation, Ms. Dickerson first contended that Shakia had suffered a residual seizure disorder “RSD” within the requisite time period as defined by the Vaccine Injury Table (“Table”), codified at 42 U.S.C. § 300aa-14. Petitioner assert[596]*596ed, alternatively, that the DTP vaccination was the actual cause of the RSD.

On July 22, 1994 Respondent, the Secretary of the Department of Health and Human Services (“DHHS”), filed its Preliminary Request for Records. Pursuant to this request and an Order of the Chief Special Master of September 23, 1994, Petitioner filed additional exhibits including medical and elementary school records on November 22, 1994. Petitioner then filed an Amended Petition on January 13,1995.

After being granted an extension of time, on May 3,1995 Respondent submitted a Rule 4(b) Report denying that Petitioner had submitted records sufficient to support either an on-Table injury or a causation-in-fact theory.

The Special Master held the first telephonic status conference in this matter on June 7, 1995.

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

Related

Cite This Page — Counsel Stack

Bluebook (online)
35 Fed. Cl. 593, 1996 U.S. Claims LEXIS 94, 1996 WL 296232, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dickerson-v-secretary-of-department-of-health-human-services-uscfc-1996.