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

23 Cl. Ct. 337, 1991 U.S. Claims LEXIS 231, 1991 WL 103481
CourtUnited States Court of Claims
DecidedMay 30, 1991
DocketNo. 90-422V
StatusPublished
Cited by4 cases

This text of 23 Cl. Ct. 337 (Dolney v. Secretary of the 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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Dolney v. Secretary of the Department of Health & Human Services, 23 Cl. Ct. 337, 1991 U.S. Claims LEXIS 231, 1991 WL 103481 (cc 1991).

Opinion

OPINION

HORN, Judge.

Petitioner, Debra L. Dolney, is before this court on petitioner’s Motion for Review of Special Master Paul Baird’s December 6, 1990 Order granting the respondent’s Motion for Summary Judgment in the above-captioned case.

Petitioner, Debra L. Dolney, who is proceeding in this court pro se, seeks compensation under the National Vaccine Injury Compensation Program, established by the National Childhood Vaccine Injury Act of 1986 (codified as amended at 42 U.S.C.A. §§ 300aa-l—300aa-34 (West Supp.1990)) (Vaccine Act).1 On May 17, 1990, Ms. Dol-ney filed her petition with the United States Claims Court for alleged injuries, including paralysis and diabetes, which she [339]*339alleged were the result of receiving a diphtheria-pertussis-tetanus (hereinafter "DPT") vaccination on March 26, 1959 and a polio vaccine on June 2, 1959.2

The special master, after conducting proceedings in the case, pursuant to the Vaccine Act, as amended, and the applicable, revised Vaccine Rules, effective January-18, 1990 (Vaccine Rules, Parts I and II),3 signed an Order on December 6, 1990, granting Defendant’s Motion for Summary Judgment. On December 26, 1990, petitioner filed her Motion for Review and Objections, together with a Memorandum of Objections. The case was assigned to this judge for further proceedings. After review of the records in the case, including all the filings submitted by both parties to the proceedings, for the reasons discussed more fully below, the findings of fact and conclusions of law of the special master are upheld and the decision of the special master is AFFIRMED.

BACKGROUND

Based on the papers submitted by both parties and the record developed by the special master, it appears that petitioner, Debra L. Dolney, was born on September 30,1954 in Ramsey County, Minnesota, and was legally adopted on November 29, 1955 in Hennepin County, Minnesota. Petitioner’s medical records indicate that she received a DPT booster shot on March 26, 1959 and the fourth in a series of polio vaccinations on June 2, 1959.

On July 31, 1959, subsequent to her mother’s becoming aware of petitioner’s excessive drinking of water following her fourth polio vaccination, Debra was examined by a Dr. Corum. The doctor indicated on his contemporaneous record that Debra may have diabetes. Debra was admitted to Tampa General Hospital on July 31, 1959. On this date, Ms. Dolney underwent an extensive physical examination. The results from a urinalysis, which was one of many tests done during this physical examination, indicated that she had a level of “sugar 4+.” The results also indicated that she had “diabetes mellitus with incipient acidosis” and otitis media. Also, at the time of her departure from the hospital, the discharging physician diagnosed Ms. Dolney as having “diabetes mellitus.” Since 1959, Debra Dolney has been treated for insulin-dependent diabetes and its resulting complications.

Following the filing in the United States Claims Court of the petition at issue in this case, the case was assigned to Special Master Paul Baird who conducted proceedings pursuant to the Vaccine Act and to the applicable Vaccine Rules.4

[340]*340According to a Memorandum Order issued by the special master on June 26, 1990, respondent’s counsel, in compliance with the Vaccine Act and Vaccine Rules, had contacted petitioner by telephone and had requested additional medical records, as well as an affidavit from a medical doctor to document the causation of the alleged injuries. A telephone status conference was scheduled, and took place on June 25, 1990, when the parties failed to agree on the production of additional information or documentation to be submitted by the respondent.

At the status conference on June 25, 1990, the special master explained to the petitioner that diabetes is not an injury listed on the Vaccine Injury Table for either the DPT or polio vaccine and that, therefore, in order to recover under the Vaccine Act, the petitioner would have to prove that one or more of the vaccines administered actually caused the diabetes. Moreover, the special master explained to the petitioner that under the Vaccine Act, entitlement to compensation may not be based solely on the claims of the petitioner, but must also be substantiated by medical records or medical opinions. At the conference on June 25, 1990, the special master issued a warning to the petitioner, which was clearly restated in the special master’s Memorandum Order dated June 26, 1990, as follows:

If no such affidavit [containing medical documentation that the petitioner was injured by the DPT or polio vaccine administered to her in 1959] is filed by the conclusion of the 30 day period of suspension and the petitioner has not requested additional time for filing, then the petition will be subject to dismissal.

On July 16, 1990, petitioner filed supplemental materials, including an affidavit from Dr. Jeffrey L. Miller, a rheumatologist and internist. Because respondent still considered Dr. Miller’s statement to be inadequate on the issue of causation, on September 17, 1990, respondent filed a Report/Motion for Summary Judgment in accordance with Rule 8(d) of the Vaccine Rules, Part I. In the Report/Motion, respondent alleged that even after submission of the supplemental information, the petitioner still had failed to show a causal connection between the vaccine administered and the alleged injuries.

In an Order dated September 19, 1990, the special master concluded that petitioner’s supplementary materials were inadequate on the issue of causation. In his Order, the special master tried to explain in detail why Dr. Miller’s affidavit, included in the supplemental materials, was still insufficient. The special master stated: “The essence of Dr. Miller’s opinion is that it is impossible to prove actual causation____” In the Order, Special Master Baird scheduled another telephone conference and wrote:

Based on the current state of the record, respondent’s motion appears meritorious and will be granted unless petitioner can satisfy the court that there remains a material issue of fact as to 1) whether a Table injury occurred or 2) whether the polio vaccine actually caused petitioner’s diabetes.

On October 4, 1990, petitioner responded to respondent’s Motion for Summary Judgment and requested a Directed Verdict in her favor. In her response, petitioner also accused both the respondent’s counsel and the special master of falsehoods and deceit.

A telephonic status conference was held on October 5, 1990, and was memorialized by the special master in an Order issued October 10, 1990. In the October 10, 1990 Order, the special master granted the petitioner additional time, until November 5, 1990, to submit further information regarding any possible causal connection between petitioner’s injuries and her polio vaccinations because petitioner indicated she was then undergoing additional medical examinations to determine the cause of her diabetes. Again, the special master indicated that if the petitioner failed to make a sufficient timely filing, the petition would be dismissed without further notice.

On November 13, 1990, petitioner filed additional medical records with the special master. These records included a Pathology Report from the H. Lee Moffitt Cancer [341]

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23 Cl. Ct. 337, 1991 U.S. Claims LEXIS 231, 1991 WL 103481, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dolney-v-secretary-of-the-department-of-health-human-services-cc-1991.