Hibbard v. Secretary of Health & Human Services

698 F.3d 1355, 2012 WL 5377808, 2012 U.S. App. LEXIS 22618
CourtCourt of Appeals for the Federal Circuit
DecidedNovember 2, 2012
Docket2012-5007
StatusPublished
Cited by422 cases

This text of 698 F.3d 1355 (Hibbard v. Secretary of Health & Human Services) is published on Counsel Stack Legal Research, covering Court of Appeals for the Federal Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Hibbard v. Secretary of Health & Human Services, 698 F.3d 1355, 2012 WL 5377808, 2012 U.S. App. LEXIS 22618 (Fed. Cir. 2012).

Opinions

Opinion for the court filed by Circuit Judge BRYSON.

Dissenting opinion filed by Circuit Judge O’MALLEY.

BRYSON, Circuit Judge.

Jennifer Hibbard received a flu vaccination in 2003. She claims that the flu vaccine caused her to develop a neurological disorder known as dysautonomia, a dysfunction of the autonomic nervous system. Her theory is that the vaccine provoked an immune reaction that damaged her autonomic nerves, and that the injury to her [1358]*1358autonomic nerves, known as autonomic neuropathy, resulted in her dysautonomia. She seeks compensation for her injury under the National Childhood Vaccine Injury Act of 1986 (“the Vaccine Act”), 42 U.S.C. §§ 300aa-l to 300aa-34.

The parties agree that Ms. Hibbard suffers from dysautonomia; the dispute between the parties is whether her dysau-tonomia is the result of autonomic neuro-pathy caused by the vaccine. Following a two-day hearing, a special master found that Ms. Hibbard had failed to show that her dysautonomia resulted from autonomic neuropathy caused by the vaccine she received in 2003. Accordingly, the special master found that she failed to meet her burden of demonstrating by a preponderance of the evidence that the vaccine resulted in a compensable injury, as required by the Act, 42 U.S.C. §§ 300aa-13(a)(1)(A) and 300aa-ll(c)(l)(C)(ii)(I). On review, the Court of Federal Claims upheld the special master’s decision. We affirm.

I

Ms. Hibbard was 41 years old and working as a first-grade teacher when she experienced a fainting spell in May 2003. She felt a wave of heat and lightheadedness, and she lost consciousness for approximately 10 seconds. She was taken to an emergency room; a neurological examination and laboratory tests were normal, and she was discharged that day. No specific tests were conducted for dysautonomia at that time. The respondent’s expert later testified that the May episode was an instance of dysautonomia, and Ms. Hibbard’s expert agreed that the episode was a symptom of autonomic dysfunction. When Ms. Hibbard saw her primary care physician in July 2003, she had recovered, but she reported that it took about a month after the fainting spell before she felt normal again. At the time of the May episode, Ms. Hibbard reported that in the past she had experienced other incidents of fainting or feeling lightheaded.

Several months later, on November 1, 2003, Ms. Hibbard received a flu vaccination. A week after the vaccination, Ms. Hibbard began to feel tired, achy, and nauseated. Her symptoms worsened during an extracurricular outing with some of her students and continued over the next few days. On November 11, she saw a physician, who prescribed antibiotics for what he believed was probably “[e]volving sinusitis.” He also noted that Ms. Hib-bard probably had “some underlying viral respiratory infection.” The antibiotics did not alleviate Ms. Hibbard’s symptoms, and during the following week she saw two other doctors, including her primary care physician, Dr. Amy Schoenbaum. Ms. Hibbard reported that she felt very weak, tired, and dizzy, especially when standing. Based on a recommendation of one of those doctors, Ms. Hibbard stopped taking the antibiotics. Both doctors thought that a viral infection might be responsible for her symptoms.

Ms. Hibbard continued to follow up with Dr. Schoenbaum. On December 12, 2003, Dr. Schoenbaum noted that Ms. Hibbard presented with complaints of “vertigo, weakness, feeling of passing out, some heaviness and numbness in her extremities.” Dr. Schoenbaum sent her to an emergency room at that time, where she was referred to a neurologist. The neurologist considered Guillain-Barré Syndrome (“GBS”) as a possible diagnosis but concluded that GBS was unlikely based on Ms. Hibbard’s medical history and physical examination. Ms. Hibbard returned to the [1359]*1359emergency room the following day because she was having trouble breathing. She was admitted to the hospital at that time with a diagnosis of “malaise,” which remained her principal diagnosis when she was discharged several days later. Over the next few months, Ms. Hibbard saw an otoneurologist for vestibular testing, which did not reveal anything abnormal. Ms. Hibbard also began seeing a psychiatrist, who initially prescribed selective serotonin reuptake inhibitor treatment. When Ms. Hibbard did not tolerate that treatment well, her psychiatrist prescribed a different antidepressant.

Ms. Hibbard’s dizziness and weakness continued, and she saw Dr. Schoenbaum again on February 27, 2004. Dr. Schoenb-aum encouraged Ms. Hibbard to continue working with her psychiatrist, because although her symptoms were “not classic for an anxiety disorder,” she was “experiencing anxiety and depression secondary to the symptoms.” Over the next several months, Ms. Hibbard saw a cardiologist and two neurologists. The cardiologist checked for mitral valve prolapse, for which Ms. Hibbard had been treated in the past, but found no definitive evidence of that condition. The first of the two neurologists, Dr. Louis Caplan, concluded that Ms. Hibbard had “a postinfectious neuro-pathy with autonomic features,” which he referred to as “kind of a Guillain Barré with partial dysautonomia.” The second neurologist was Dr. Kenneth Gorson, an expert in GBS. Dr. Gorson reported that Ms. Hibbard’s detailed neurological examination was normal and that the “[r]outine nerve conduction studies were pristine.” Based on his examination, Dr. Gorson concluded that Ms. Hibbard did not have “electrophysiologic features, nor clinical features, of typical [GBS],” but he added that it was “certainly possible that she developed a modest dysautonomic neuro-pathy following a nonspecific viral illness or even the flu vaccination back in November.” He noted that some patients with a condition known as Postural Orthostatic Tachycardia Syndrome (“POTS”) have symptoms similar to Ms. Hibbard’s.

The record indicates that POTS is a syndrome in which the patient’s heart rate increases significantly upon standing without a significant drop in blood pressure. POTS is indicative of dysautonomia, but it is a nonspecific finding. While it can be associated with autonomic neuropathy, it can have other causes as well. To test for POTS, Dr. Gorson recommended a tilt table test.

On June 16, 2004, Ms. Hibbard underwent a series of tests of her autonomic nervous system, including a tilt table test. The tests were conducted by Dr. Christopher Gibbons under the supervision of Dr. Roy Freeman, a leading expert on autonomic dysfunction. The tests resulted in a diagnosis of POTS. In addition to showing the presence of orthostatic tachycardia (rapid heart rate upon standing), the tilt table test revealed some drop in blood pressure when Ms. Hibbard was elevated into the standing position. The testing also showed “an exaggerated postural tachycardia ... on active standing” and “symptoms of lightheadedness and shortness of breath while standing.” The results of the other autonomic tests that Dr. Gibbons and Dr. Freeman administered to Ms. Hibbard were all in the normal range.

In their report, Drs. Gibbons and Freeman stated that the overall study was “abnormal” in that “one measure of sympathetic adrenergic function [the tilt table test for POTS] was in the pathologic range,” although the measures of the “sympathetic cholinergic function were in [1360]

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698 F.3d 1355, 2012 WL 5377808, 2012 U.S. App. LEXIS 22618, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hibbard-v-secretary-of-health-human-services-cafc-2012.