Edgar v. Secretary of Department of Health & Human Services

26 Cl. Ct. 286, 1992 U.S. Claims LEXIS 210, 1992 WL 98100
CourtUnited States Court of Claims
DecidedApril 28, 1992
DocketNo. 90-711V
StatusPublished
Cited by7 cases

This text of 26 Cl. Ct. 286 (Edgar 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.

Bluebook
Edgar v. Secretary of Department of Health & Human Services, 26 Cl. Ct. 286, 1992 U.S. Claims LEXIS 210, 1992 WL 98100 (cc 1992).

Opinion

ORDER

HARKINS, Senior Judge:

Petitioners, on behalf of their daughter Jamie K. Edgar, 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United States Claims Court under the National Vaccine Injury Compensation Program (the Program) of a special master’s unpublished decision, filed October 24, 1991. Respondent also seeks review of the special master’s decision.

The Program was established in 1986 as part of the National Childhood Vaccine Injury Act, Pub.L. No. 99-660, tit. Ill, § 311(a), 100 Stat. 3743, 3758. Amendments in 1987, 1988, 1989, 1990, and 1991 changed 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

Jamie K. Edgar was born on May 25, 1984. She received DTP vaccinations on July 26, October 26, and December 6, 1984, apparently without incident. She had no serious medical problems until she received DTP booster and oral polio vaccinations on June 27, 1989. On June 28, 1989, she was sent to the emergency room at Somerset [288]*288Medical Center, Sommerville, New Jersey with a temperature of 101.9°. On July 2, 1989, she had a first seizure, and thereafter she developed intractable seizures, which are very difficult to control. Tests done in September 1989 showed cerebral atrophy. By December 6, 1990, management of her prolonged seizures required regular administration of three anti-eonvulsants. She has features cf. a persistent vegetative state together with evidence of a spastic biparesis, and bilateral optic atrophy. She is in coma level II—III, and is entirely dependent on hospital staff for all areas of daily living. She has no independent ambulation, no bowel and bladder control and is fed through a tube which has been artificially placed in the abdomen. It is clear that Jamie has had a significant and apparently irreversible insult to her brain. Jamie currently is in a comatose state and is institutionalized in a long term care facility in New Jersey, where her bills are being paid through Medicaid. Medicaid is not an offset under the statute.

Respondent, in its January 3, 1991, report, conceded entitlement, and the matter proceeded to a determination of appropriate damages. Two special masters have been responsible for the proceedings. The petition establishes a post-Act (prospective) case. Damages include future medical expenses, lost future earnings, past and future pain and suffering, and past unreimbursed expenses related to the care and well-being of the injured person. Section 300aa-15(a)(l), (3) and (4).

In an unpublished decision on August 23, 1991, the special master awarded an annual amount of $172,526.06 for future medical expenses. This amount was directed to be provided through an annuity based on an annual growth factor of 4 percent, purchased from an insurance company, and owned by respondent. Both parties accept the decision on future medical expenses.

The special master in the August 23, 1991, decision noted that petitioners were entitled to an amount for lost wages and an amount for pain and suffering. The parties were directed to supply further information as to life expectancy and weekly earnings figures required by Section 300aa-15(a)(3)(B).

Shortly after the August 23, 1991, decision, the special master left government service. On September 6, 1991, the case was assigned to a new special master.

On October 24, 1991, the new special master filed a decision that incorporated by reference statements made in a bench ruling given on October 23, 1991. The October decision reaffirms the terms and criteria of the prior award for future medical expenses. In addition, the October 24, 1991, decision awards a lump sum payment to petitioners for pain and suffering and lost earnings, apportioned in the bench ruling as follows:

Past Pain and Suffering $100,000
Future Pain and Suffering 50,000
Total $150,000
Lost Earnings $127,048
Total Lump Sum Payment $277,048

In its motion for review, respondent challenges only the $50,000 award for future pain and suffering. Plaintiff’s motion for review challenges the October 24, 1991, decision as to: (1) the total amount of the injured child’s lost future earnings capacity, (2) the net present value of the total amount of such lost future earnings capacity, and (3) refusal to make an award to compensate petitioners for past unreimbursed expenses related to the care and well being of the injured child.

Standard of Review

A special master’s decision may not be disturbed by the Claims Court unless the court finds it to be arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law. The 1989 Amendments defined the Claims Court function in a review of a special master’s decision in Section 300aa-12(e)(2), as follows:

(2) Upon the filing of a motion under paragraph (1) with respect to a petition, the United States Claims Court shall have jurisdiction to undertake a review [289]*289of the record of the proceedings and may thereafter—
(A) uphold the findings of fact and conclusions of law of the special master and sustain the special master’s decision,
(B) set aside any findings of fact or conclusion of law of the special master found to be arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law and issue its own findings of fact and conclusions of law, or
(C) remand the petition to the special master for further action in accordance with the court’s direction.

The report of the Conference Committee on the 1989 Amendments emphasized that an appeal to the Claims Court was to be “under very limited circumstances.” The report states:

The Conferees have provided for a limited standard for appeal from the master’s decision and do not intend that this procedure be used frequently but rather in those cases in which a truly arbitrary decision has been made.

H.R.Conf.Rep. No. 101-386, 101st Cong., 1st Sess., at 517, reprinted in 1989 U.S.Code Cong. & Admin.News 1906, 3112, 3120.

This limited scope of review is tailored to the concepts and objectives of the Program. The standard “arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law” is based on one of the criteria established by the Administrative Procedure Act (APA). 5 U.S.C. § 706 (1988). To the extent consistent with Program objectives to be attained through the Office of Special Masters, decisions interpreting the APA standard have application in a review of a special master’s decision. Under the APA standard, conclusions of law are considered de novo. Rice v. Wilcox, 630 F.2d 586, 589 (8th Cir.1980). On issues of law, recognition should be given to the special master’s expertise in the development of the procedures in this novel Program.

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26 Cl. Ct. 286, 1992 U.S. Claims LEXIS 210, 1992 WL 98100, Counsel Stack Legal Research, https://law.counselstack.com/opinion/edgar-v-secretary-of-department-of-health-human-services-cc-1992.