Epstein v. Secretary of Department of Health & Human Services

35 Fed. Cl. 467, 1996 U.S. Claims LEXIS 76, 1996 WL 243657
CourtUnited States Court of Federal Claims
DecidedApril 26, 1996
DocketNo. 90-3242-V
StatusPublished
Cited by17 cases

This text of 35 Fed. Cl. 467 (Epstein 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.

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Epstein v. Secretary of Department of Health & Human Services, 35 Fed. Cl. 467, 1996 U.S. Claims LEXIS 76, 1996 WL 243657 (uscfc 1996).

Opinion

[469]*469OPINION

HORN, Judge.

The above-captioned case was initially assigned to this judge on November 30, 1995, for the purpose of conducting a review of the special master’s decision, issued October 31, 1995. Epstein v. Sec’y DHHS, Case No. 90-3242V, Office of Spec.Mstr., October 31,1995. In her decision, the special master denied compensation to the petitioners under the National Childhood Vaccine Injury Act of 1986,42 U.S.C. §§ 300aa-l through 34 (1991) (hereinafter “Vaccine Act”).1 Following issuance of the decision, on November 30, 1995, the petitioners filed a Motion for Review, alleging that the special master had committed several errors in reaching her decision. The respondents filed a Memorandum in Response to Petitioners’ Motion for Review on December 29, 1995, asking this court to uphold the special master’s decision.

Initially, the petitioners’ claim for compensation pursuant to the Vaccine Act on behalf of their son, Andrew V. Epstein, was filed before the Office of the Special Masters in the United States Claims Court2 on October 1, 1990. Petitioners brought their claim before the special master alleging that their son, Andrew, had suffered a vaccine-related injury within 72 hours after receiving his fourth Diphtheria-Pertussis-Tetanus (hereinafter “DPT”) vaccination on August 29, 1988. Petitioners alleged that the claimed injuiy was manifested by neurological injuries, including encephalopathy, screaming, and crying.3 Petitioners also allege that Andrew suffered residual effects from the vaccination, including developmental delays and communication disorders for more than six (6) months after the vaccination, that he continues to suffer such residual effects at the present time, and that such effects are permanent in nature.

The special master held evidentiary hearings on June 29, 1994 and April 11, 1995. Following a review of the testimony and the documents included in the record, the special master issued a written decision, which found that the petitioners were not entitled to compensation. The special master concluded that “[tjhere is not a preponderance of the evidence that Andrew suffered a shock-eol-[470]*470lapse as defined by the Vaccine Injury Table, with onset within 72 hours of the administration of the DPT vaccination on August 29, 1988.” 4 The special master also ruled that “[tjhere is not a preponderance of the evidence that petitioners expended in excess of $1000 in unreimbursed medical expenses as a result of a vaccine-related injury.”

FACTS5

Andrew was born on February 25, 1987. There were no complications at the time of his birth. Initially, he seems to have achieved normal developmental milestones. On July 18, 1988, Andrew’s pediatrician examined him, and noted “seems fine.” According to his pediatrician, at 12-months of age, he was healthy and able to say five words. During his 18-month examination on August 29, 1998, the family pediatrician, Dr. Deborah White, noted in Andrew’s medical record: “few words ‘O’ phrases.” At the hearing, Dr. White also testified that Andrew “did not use any phrases and he spoke, [sic] he only communicated with a few words.” She also stated: “He wasn’t communicating. He showed some subtle signs at that visit that raised my concern that he was not performing at the usual milestones for an 18-month-old child.” In an affidavit, dated March 4, 1994, Dr. White also noted that at his one-year checkup, Andrew was “speaking five words,” at his 15-month checkup, he was “increasing articulation,” but at his 18-month checkup, “Andrew spoke few words and no phrases,” and that she “became concerned that he was falling off developmentally.” Subsequently, when Andrew was in her office for his two-year checkup, Dr. White noted that he spoke no words at all and did not follow commands. Also, according to Dr. White’s affidavit, it was during the two-year checkup that she determined Andrew had a speech delay, and she referred him for speech evaluation.

There is no dispute between the parties that on Monday, August 29, 1988, at Andrew’s 18-month checkup, he received his fourth DPT vaccine. Debra Epstein, Andrew’s mother, testified that after leaving the doctor’s office following his fourth DPT vaccination, Andrew became very tired, did not drink, eat, or hold himself up, and slept for the rest of the day. Mrs. Epstein also stated that Andrew felt hot to the touch and evidenced a fever of 103° to 104°. She testified that she gave Andrew Tylenol and put him to bed. Apparently, however, she did not contact the doctors, although Andrew’s symptoms allegedly lasted for the next several days.6 Mrs. Epstein also testified that the night Andrew received Ms fourth DPT vaccine, he began to suffer what was later diagnosed as ‘Might terrors,” screaming and crying for extended periods of time each Mght, and that this behavior continued for over a year.7

[471]*471Despite the alleged seriousness of Andrew’s symptoms after his fourth DPT vaccination, however, Mr. and Mrs. Epstein continued their normal routines following the alleged onset of those post-vaccination symptoms. Mrs. Epstein worked, attended night law school classes, and had her mother babysit Andrew, even on the night he was vaccinated. On the Saturday8 evening after Andrew received his fourth DPT vaccination, the Epsteins went out to dinner to celebrate their anniversary.

During the time the Epstein children were patients at the Chestnut Hill Pediatric Group, the Pediatric Group apparently kept a routine summary of each phone call received. At the hearing, Mrs. Epstein testified that on August 30, 1988, the day after Andrew received his fourth DPT inoculation, she telephoned the Chestnut Hill Pediatric Group, in which Dr. White practiced. According to Mrs. Epstein, when she learned that Dr. White was not in the office, she allegedly spoke to one of the nurses. Although there is no record of any such contacts in the regularly kept logs of the Chestnut Hill Pediatric Group, Mrs. Epstein testified that she called the doctor’s office several times, each time speaking to a nurse, not to a doctor.

The evidence demonstrates, however, that during the two weeks after Andrew received his fourth DPT vaccination, Mrs. Epstein did not call or bring Andrew into the doctor’s office or take him to a hospital, testifying that the nurses at the Chestnut Hill Pediatric Group had told her to come in only if Andrew had a seizure. The first recorded contact from Mrs. Epstein to the Pediatric Group following Andrew’s August 29, 1988 DPT shot, was a phone call placed on Thursday, September 15, 1988. This call, however, appears to have been unrelated to Andrew’s fourth DPT vaccination, 17 days earlier, because the notes in the doctor’s file state: “Fever since Friday [September 9,1988] 99°-101°. Ended Monday, Rash started Monday getting worse. Child very cranky.”

When Andrew was seen following the September 15, 1988 phone call, Andrew was not seen by Dr. White. Instead, he was examined by Dr. Harry Butson, another doctor associated with the Chestnut Hill Pediatric Group. Dr. Butson diagnosed Andrew’s condition as roseola, after noting Andrew’s fever, irritability, and the rash on his face and body. Dr. Butson’s notes, however, do not reflect any of the other symptoms that Mrs.

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35 Fed. Cl. 467, 1996 U.S. Claims LEXIS 76, 1996 WL 243657, Counsel Stack Legal Research, https://law.counselstack.com/opinion/epstein-v-secretary-of-department-of-health-human-services-uscfc-1996.