Greene v. Secretary of the Deptartment of Health & Human Services

19 Cl. Ct. 57, 1989 U.S. Claims LEXIS 266, 1989 WL 150801
CourtUnited States Court of Claims
DecidedDecember 14, 1989
DocketNo. 88-41V
StatusPublished
Cited by7 cases

This text of 19 Cl. Ct. 57 (Greene v. Secretary of the Deptartment 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
Greene v. Secretary of the Deptartment of Health & Human Services, 19 Cl. Ct. 57, 1989 U.S. Claims LEXIS 266, 1989 WL 150801 (cc 1989).

Opinion

ORDER

FUTEY, Judge.

This vaccine action is brought pursuant to the National Childhood Vaccine Injury Act of 1986 as amended, 42 U.S.C. § 300aa-10 et seq. (Supp. V 1987), which establishes a program for payment of compensation for injuries or deaths resulting from the administration of vaccines.

This matter comes before the court on Chief Special Master Gary Golkiewicz’ Report and Recommendation of Judgment filed November 20, 1989.1 No objection to the Special Master’s Report and Recommendation of Judgment has been filed and the time to so file has expired.

[59]*59Pursuant to 42 U.S.C. § 300aa-12(d)(2), the Special Master’s Report and Recommendation of Judgment is hereby adopted and the full report is attached hereto.

Accordingly, petitioners, as legal representatives of Chad Greene, are entitled to an award of $250,000.00 as statutory compensation and attorneys’ fees and costs in the sum of $17,551.32.

The Clerk is directed to enter judgment in the sum of $267,551.32 for petitioners in their capacity as legal representatives for Chad Greene. No additional costs to be awarded.

IT IS SO ORDERED.

REPORT AND RECOMMENDATION OF JUDGMENT1

GARY J. GOLKIEWICZ,

Chief Special Master.

Petitioners seek compensation under the National Vaccine Injury Compensation Program, 42 U.S.C. § 300aa-10 et seq. (Supp. V 1987) (hereinafter “the Vaccine Act”), for the death of their minor child, Chad Greene, allegedly resulting from a diphtheria-pertussis-tetanus (hereinafter “DPT”) vaccine administration on April 14, 1980. An evidentiary hearing was held on September 19, 1989, in Austin, Texas.2

Pursuant to 42 U.S.C. § 300aa-12(c)(2) and Vaccine Rule 18(a), the undersigned recommends to the assigned Claims Court judge, Judge Futey, that judgment be entered for petitioners under the Vaccine Act in the amount of $267,551.32, consisting of $250,000 to compensate for Chad’s death and $17,551.32 for attorney’s fees and other costs.

I

FINDINGS OF FACT

The following uncontroverted facts are fully supported by the record and, therefore, are so found:

Chad Greene was born to Daniel and Sandra Greene on February 24,1980, at the Arlington Memorial Hospital in Arlington, Texas. See Petitioners’ Exhibit No. 2, Greene v. Secretary of Dep’t of Health and Human Services, No. 88-41V, at 13 (Cl.Ct. Sept. 25, 1989) (hereinafter “P Ex. — at —”). Labor and delivery were without incident. Id. at 12; see also P Ex. 3 at 5. Dr. R.W. Brentlinger was the delivering physician. P Ex. 2 at 12. At birth, Chad weighed 8 pounds-^ ounces, and measured 22 inches in length. P Ex. 4 at 11. Apgar tests which numerically score the condition of a new bom by assessing the newbom’s heart rate, respiratory effort, muscle tone, reflex irritability and col- or, were conducted on Chad at one and five minutes after birth and resulted in scores of 8 and 9, respectively, out of a maximum score of 10. P Ex. 2 at 12; see also P Ex. 3 at 14. The hospital’s “Pediatric Newborn Record” describes Chad as an “apparently normal male infant.” P Ex. 4 at 3. Mother and child were discharged from the hospital on February 27, 1980, after an uneventful postpartum course. P Ex. 3 at 7.

On March 17, 1980, Chad, at the age of 3 weeks, was brought to Dr. Brentlinger’s office at the Arlington Medical Clinic in Arlington, Texas, for Chad’s first well-baby visit. P Ex. 5 at 1. At the time of examination, Chad weighed 10 pounds-4V2 ounces and measured 22½ inches in length. The results of a phenylketonuria or PKU test were normal.3 Dr. Brentlinger noted in his [60]*60record of that visit “no path[ology]”, indicating that there was no evidence of any abnormalities. Id.

On April 14, 1980, Chad returned to Dr. Brentlinger’s office for his second well-baby visit. Id. Again, the doctor’s notes indicate that Chad was not suffering from any medical abnormality at the time of the visit. Dr. Brentlinger advised Mrs. Greene to begin feeding Chad egg yolk and vegetables and fruits. Id. On this visit, Chad received his first administration of a diphtheria-pertussis-tetanus vaccine and an oral polio vaccine. Id.

In- the parking lot of the medical clinic following the checkup, Mrs. Greene gave Chad some Tylenol to prevent any fever that may result from the DPT vaccine. Hearing Transcript, Greene v. Secretary of Dep’t of Health and Human Services, No. 88-41V, 37 (Cl.Ct. Sept. 25, 1989) (hereinafter “Tr. at —”). The child slept the 15 to 20 minute ride home from the clinic. Id. at 38. At approximately 5:00 p.m., one hour after receipt of the vaccine, Chad started fussing and crying “hard”. Id. at 38-39. All attempts to console the child were in vain. Id. As well, the thigh in which the shot was injected had swollen considerably. Id. at 39-41. The child would sleep for about two hours at a time, and when he awoke he was “cranky.” Id. at 42.

At approximately 9:00 a.m. on April 15, 1980, Chad awoke and was fed a bottle. Mrs. Greene laid him cross-wise in his rectangular-shaped crib. Id. at 43. Mrs. Greene then returned to bed herself. She awoke suddenly at approximately 2:00 p.m. with the feeling that something was wrong as Chad had never slept that long. Id. at 44; see also P Ex. 9 at 2. She found Chad completely face down in the comer of his crib. His hands were clenched and extended to the side. His legs were also extended. His skin color was purple. Id. A plastic bag which was used to protect the mattress was found three to four inches from the child’s head. Id. at 52; see also P Ex. 6 at 3; P Ex. 9 at 2. Mrs. Greene called an ambulance. P Ex. 6 at 2. Upon arrival, the medics found the child in full respiratory arrest. Id. at 3.4 The child was transported to Arlington Community Hospital where attempts at resuscitation were unsuccessful. P Ex. 7 at 4. At 2:20 p.m., Chad was pronounced dead. Id.

In the autopsy report, Dr. N.S. Peerwani, the Chief Medical Examiner, concluded that the cause of death was “sudden infant death syndrome.” P Ex. 8 at 5. In addition, it was noted that the child had not suffocated as originally suspected due to the proximity of the plastic bag, but rather died of natural causes. See P Ex. 9 at 3.

Mr. and Mrs. Greene filed a civil action against three vaccine manufacturers of DPT in 1986. See Greene v. Wyeth Laboratories, Inc., Civil Action No. 4-86-624-E (N.D.Tex.1988). The Greenes subsequently moved to dismiss their case without prejudice so as to bring a petition under the Vaccine Act. See Order of Dismissal, Greene v. Secretary of Dep’t of Health and Human Services, No. 88-41V (Cl.Ct. Nov. 20, 1989).

II

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19 Cl. Ct. 57, 1989 U.S. Claims LEXIS 266, 1989 WL 150801, Counsel Stack Legal Research, https://law.counselstack.com/opinion/greene-v-secretary-of-the-deptartment-of-health-human-services-cc-1989.