Gardner-Cook v. Secretary of Health & Human Services

59 Fed. Cl. 38, 2003 U.S. Claims LEXIS 227, 2003 WL 23095262
CourtUnited States Court of Federal Claims
DecidedJuly 25, 2003
DocketNo. 99-480V
StatusPublished
Cited by6 cases

This text of 59 Fed. Cl. 38 (Gardner-Cook 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
Gardner-Cook v. Secretary of Health & Human Services, 59 Fed. Cl. 38, 2003 U.S. Claims LEXIS 227, 2003 WL 23095262 (uscfc 2003).

Opinion

ORDER

HORN, Judge.

Nancy Gardner-Cook, petitioner, alleged neurological injury after two hepatitis B vaccinations that she received on August 12 and September 9, 1994. Petitioner filed a claim in the United States Court of Federal Claims, seeking recovery under the National Childhood Vaccine Injury Act (Vaccine Act), 42 U.S.C. §§ 300aa-l to 300aa-34 (2000). A special master dismissed petitioner’s claim after hearing testimony and reviewing documents submitted by petitioner and respondent. Petitioner subsequently filed a timely motion for review in the United States Court of Federal Claims, objecting specifically to certain findings of the special master. This court has jurisdiction under the Vaccine Act to review the special master’s findings of fact and conclusions of law. See 42 U.S.C. § 300aa-12(e)(2).

FINDINGS OF FACT

Nancy Gardner-Cook is a mother and medical secretary with a history of medical problems. Ms. Gardner-Cook received two hepatitis B vaccinations on August 12, 1994 and September 9, 1994, which she alleged caused neurological injury. Petitioner alleged that injuries resulting from the vaccinations have decreased her cognitive ability and work productivity, such that “[sjince the vaccinations, she has been unable to keep employment,” whereas past employers evaluated her work as “above average” and “very proficient.”

The record reflects that petitioner has a history of medical problems predating her first hepatitis B vaccination. Between 1988 and 1994, Ms. Gardner-Cook visited a number of doctors for a variety of problems, including chest pain and tightness, difficulty breathing, depression and anxiety, fatigue, difficulty sleeping, persistent headaches, and dizziness. In the years prior to her first vaccination, petitioner was diagnosed with hypothyroidism, obesity, mitral valve prolapse,1 anxiety, and depression.

On Friday, August 12, 1994, petitioner received her first hepatitis B vaccination at Lancaster General Hospital. According to the record, on August 15, 1994, petitioner visited her family physician, Dr. Gerstein, complaining of numbness in her left side. Petitioner was admitted to the hospital on August 15, 1994. While admitted, Ms. Gardner-Cook underwent a neurological consultation during which tests were conducted, including a CT scan (computed tomography) and MRI (magnetic resonance imaging). The results of both these tests revealed no brain abnormality. Ms. Gardner-Cook had a “positive Romberg,” which was unexplained in the discharge records. The Romberg test is an equihbrium test that may reveal deficiencies in the manner in which position signals are sent to the brain.2 Ms. Gardner-[40]*40Cook was discharged from the hospital on August 17, 1994, and “was feeling almost back to normal,” according to the discharge summary.

On September 9, 1994, petitioner received a second hepatitis B vaccination. Before the shot was administered, the record reflects that petitioner assured the nurse that there had been no problems with the first dose. On September 12, 1994, however, petitioner returned to her family physician, again complaining of numbness. The diagnosis was “[p]ossible serum sickness reaction to” the vaccine. Dr. Gerstein recommended “that she not complete the [vaccination] series because (A) it is making her sick” and (B) she was low-risk for contracting the virus. Over the course of the next several years, Ms. Gardner-Cook visited many specialists, including allergists, an immunologist, a rheu-matologist, a pulmonologist, and a toxicologist, consistently complaining of numbness on her left side.

On December 12, 1995, Dr. Jack W. Snyder, a clinical toxicologist and associate professor in the Department of Emergency Medicine & Laboratory Medicine at Thomas Jefferson University, examined Ms. Gardner-Cook for a workmen’s compensation claim she had filed. Dr. Snyder, who is board certified in toxicology, medical toxicology, toxicological chemistry, occupational medicine, and chemical pathology, determined that Ms. Gardner-Cook’s symptoms were not attributable to the hepatitis B vaccinations. At the workmen’s compensation claim hearing on September 9, 1996, Dr. Snyder testified that all of Ms. Gardner-Cook’s reported post-vaccination symptoms can be explained by one or more of petitioner’s preexisting medical conditions, namely, hypertension, sinusitis, bronchitis, drug allergies, depression, mitral valve prolapse, symptoms of colitis or excessive weight.

On July 23,1999, petitioner filed a claim in the United States Court of Federal Claims seeking recovery under the National Childhood Vaccine Injury Act, 42 U.S.C. §§ 300aa-l to 300aa-34. Petitioner alleged that she experienced symptoms after each of the two administrations of the vaccine, “including neurologic symptoms indicative of a demyelinating disorder, which can leave long lasting neuropsyehiatrie deficits .... ” Significantly, petitioner alleged she suffered either Guillian-Barre Syndrome (GBS) or acute disseminated encephalomyelitis (ADEM) after the second vaccination. GBS and ADEM, similar to multiple sclerosis, are demyelinat-ing 3 diseases affecting the nerve fibers in the nervous system. According to the respondent, however, the connection between hepatitis B vaccination and neurologic injury is largely unsupported in the medical literature.

In 2001, petitioner also was examined by Dr. Mark Kritchevsky, a professor of neuros-ciences at the Perlman Ambulatory Care Center, Behavioral Neurology Clinic, UCSD Healthcare. Dr. Kritchevsky wrote a detailed report, which is in the record, of his two hour examination of Ms. Gardner-Cook and review of her medical records. In his report dated November 11, 2001, Dr. Krit-chevsky concluded that Ms. Gardner-Cook probably had “functional somatic syndrome.” 4 The report stated:

I know of no good evidence that hepatitis B vaccine can lead to any serious or significant neurologic disorder. I do not believe that her neuropsychological testing shows [41]*41“brain damage.” Neither SPECT5 nor PET6 sean are reliable indicators of brain damage in a patient such as Ms. Gardner. Her baseline anxiety disorder made her more susceptible to the functional somatic syndrome from which she is suffering. The diagnosis of brain damage and the ongoing legal proceedings have likely contributed to symptom amplification and have also likely contributed to and worsened the functional somatic syndrome.

The special' master conducted a hearing at the United States Court of Federal Claims in Washington, D.C. on July 19, 2002. At the hearing, petitioner offered Dr. Byron M. Hyde’s expert testimony regarding petitioner’s injuries. Ms. Gardner-Cook and her husband also testified regarding the course of her alleged illness and deterioration of her quality of life since the hepatitis B vaccinations.

Dr. Hyde is a self-described “investigative physician,” as opposed to a “treating physician,” who resides in Ottawa, Canada. Dr. Hyde testified at the July 19, 2002 hearing that he is the principal editor of a textbook on chrome fatigue syndrome and myalgic en-cephalomyelitis, but has not been board certified in any area.

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

Related

Cite This Page — Counsel Stack

Bluebook (online)
59 Fed. Cl. 38, 2003 U.S. Claims LEXIS 227, 2003 WL 23095262, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gardner-cook-v-secretary-of-health-human-services-uscfc-2003.