Flores ex rel. Perez v. Secretary of Health & Human Services

52 Fed. Cl. 294, 2002 U.S. Claims LEXIS 85, 2002 WL 661726
CourtUnited States Court of Federal Claims
DecidedApril 5, 2002
DocketNo. 99-949V
StatusPublished

This text of 52 Fed. Cl. 294 (Flores ex rel. Perez v. Secretary 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
Flores ex rel. Perez v. Secretary of Health & Human Services, 52 Fed. Cl. 294, 2002 U.S. Claims LEXIS 85, 2002 WL 661726 (uscfc 2002).

Opinion

ORDER

HORN, Judge.

The petitioner Maria Perez, acting pro se on behalf of her son Dimitri Flores, filed a petition under the National Vaccine Injury Compensation Act, 42 U.S.C. §§ 300aa-l to 300aa-34 (1994) (Vaccine Act),1 seeking compensation for injuries allegedly sustained by her son, Dimitri Flores. The November 22, 1999 petition for vaccine compensation alleged that “[a]s a result of receiving a DPT [diphtheria-pertussis-tetanus] vaccination on November 25, 1996, Dimitri Flores, (hereafter ‘Dimitri’) suffered a residual seizure disorder, stroke, behavioral problems, mental and physical developmental delay, and neurological sequelae .... ” The petition does not specify whether the petitioner is seeking to establish entitlement under the National Vaccine Injury Compensation Act to compensation based on presumed causation, or for an on-Table injury, 42 U.S.C. § 300aa-14, or entitlement to compensation based on actual causation, for an off-Table injury, 42 U.S.C. §§ 300aa-13(a)(l)(A), 300aa-ll(c)(l). After holding a hearing, at which Ms. Perez testified, the special master issued a brief Order of Dismissal of petitioner’s case on October 19, 2001. The special master concluded in the October 19, 2001 order that “the petitioner has failed to meet her evidentiary burden to establish a prima facie case.”

Throughout the proceedings before the special master, the petitioner was represented by Mr. Ronald C. Homer of Boston, Massachusetts as the attorney of record. The court received the petitioner’s motion for review on November 19,2001. The motion was signed and submitted by Ms. Perez, not by Mr. Homer. The petitioner’s motion initially was not filed with the clerk of this court for failure to comply with various Rules of the United States Court of Federal Claims (RCFC), including Rule 11 and 81(d), which requires all filings to be signed by the attorney of record. After inquiring as to the status of Mr. Homer as attorney for the petitioner, the court received Mr. Homer’s motion to withdraw as the petitioner’s attorney of record, dated November 29, 2001. A telephone status conference was held with the court, Ms. Perez, and the respondent’s attorney of record. During the status conference, Ms. Perez stated she intended to proceed with her motion for review pro se2 Following the telephone status conference, the court issued an order, dated December 5, 2001, establishing a briefing schedule and directing the clerk of court to file the petitioner’s motion for review as of the date it was received by the court, November 19, 2001.

FINDINGS OF FACT

Dimitri was born on August 11, 1992, at • Our Lady of Mercy Medical Center, Bronx, [296]*296New York. The petition for vaccine compensation states that Dimitri’s medical records indicate no significant abnormalities at birth except an extended hospital stay of three days due to jaundice. He was ultimately released on August 14, 1992. Although the petition states that until his November 25, 1996 DPT vaccination, the one at issue in this case, “Dimitri was a healthy child ... except for usual childhood ailments,” the record filed by the petitioner with the petition for vaccine compensation raises some questions in that regard. For example, a medical record from the Hunts Point Multi-Service Center, Inc., dated March 25,1993, states, among other entries, that Dimitri “needed oxygen to breath [sic] since birth till 4 months old.” A neonatal history, apparently taken during the same office visit, has boxes for frequent colds checked. In addition, in a personal history of Dimitri for his individualized education program, dated July 7, 1997, there is an entry which indicates that Dimitri experienced a traumatic birth, he got stuck in the birth canal, lacked oxygen at birth, he was born without a heartbeat, his mother suffered a seizure during delivery, and his mother had developed gestational diabetes and/or eclampsia. This record also indicates that the infant was incubated for two days. Furthermore, there are references in several places in the record that the child might have suffered a mild stoke, after the November 25, 1996 vaccinations, in addition to the alleged post-vaccination seizures.

On November 25, 1996, Dimitri Flores, at four years and three months, received his first measles-mumps-rubella vaccination, his third hepatitis B vaccination, his fourth DPT vaccination, and a hemophilus influenzae b vaccination. Ms. Perez, Dimitri’s mother, stated in an affidavit filed with the petition for vaccine compensation, that after returning home from the November 25, 1996 vaccinations, Dimitri fell asleep. According to the affidavit, when he awoke at 6:00 p.m., he was confused and disoriented, started to shake, foam was coming out of his mouth, his tongue turned purple, and he started to get pale and cold. The petitioner called 911 and Dimitri Flores was taken to the Lincoln Medical & Mental Health Center. In her affidavit, petitioner states, based on information she says was given to her at the hospital, Dimitri had suffered either a seizure or an allergic reaction to the vaccination. According to Dimitri’s mother, he had another seizure shortly after arriving at the Lincoln Medical & Mental Health Center.

During the next sixteen months, Dimitri was seen by his pediatrician, was returned to the emergency room of the Lincoln Medical & Mental Health Center, and received a number of neurology consultations. Dimitri was administered an electroencephalogram (EEG) and a magnetic resonance imaging scan (MRI). The EEG was reported normal. The petitioner states in her affidavit that the “doctor told me there were flurries on the MRI which meant that my son had suffered a minor stroke.” An entry on an April 1, 1997 neurology report, however, indicates that the MRI was reported normal. Dimitri’s medical records also indicate that at least two MRIs were performed during this period, but the record is not clear as to the specific dates on which they were performed. Other medical records indicate that the first MRI administered may have shown cloudiness, perhaps indicating evidence of a stroke, but this conclusion appears to have been disapproved by a subsequent MRI.

On May 22, 2000, the petitioner filed an initial expert medical report dated May 11, 2000, authored by Dr. Marcel Kinsbourne, member of the American Board of Pediatrics and professor of psychology at New School University, New York, New York, in support of her petition. In his report, Dr. Kinsb-ourne states the following:

There are no contemporaneous medical records that document the abrupt onset of speech and motor deficits within three days of the DPT vaccination. But if the Court finds that Dimitri’s mother’s testimony is factual, then her account of the events immediately following the DPT vaccination will give me a basis for the following conclusions: In the absence of evidence for alternative causation, the abrupt onset of neurological deficits within three days of a DPT vaccination indicates an encephalopathy due to the pertussis vaccine. Dimitri’s continuing psychomotor deficits, as well as subsequent seizures and need [297]*297for anti-epileptic treatment, are sequelae of that acute encephalopathy.

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Bluebook (online)
52 Fed. Cl. 294, 2002 U.S. Claims LEXIS 85, 2002 WL 661726, Counsel Stack Legal Research, https://law.counselstack.com/opinion/flores-ex-rel-perez-v-secretary-of-health-human-services-uscfc-2002.