Hibbard v. Secretary of Health & Human Services

100 Fed. Cl. 742, 2011 U.S. Claims LEXIS 1856, 2011 WL 3941030
CourtUnited States Court of Federal Claims
DecidedAugust 24, 2011
DocketNo. 07-446V
StatusPublished
Cited by266 cases

This text of 100 Fed. Cl. 742 (Hibbard 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.

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Hibbard v. Secretary of Health & Human Services, 100 Fed. Cl. 742, 2011 U.S. Claims LEXIS 1856, 2011 WL 3941030 (uscfc 2011).

Opinion

OPINION AND ORDER

WHEELER, Judge.

This ease is before the Court for review of Special Master Christian J. Moran’s April 12, 2011 decision denying compensation to Petitioner Jennifer Hibbard under the National Vaccine Injury Compensation Program, 42 U.S.C. §§ 300aa-10 to -34 (“the Vaccine Act”). Ms. Hibbard claims that the influenza vaccination she received on November 1, 2003 caused her to develop a neurological condition called “dysautonomia.” This condition is defined as a malfunction of a portion of the nervous system, known as the autonomic nervous system, which regulates the activity of the cardiac muscle, smooth muscle, and glands. See Dorland’s Illustrated Medical Dictionary 575,1859 (32d ed. 2011).

Respondent contends, and the special master found, that although Ms. Hibbard suffers from dysautonomia, she is not entitled to recover. According to both Respondent and the special master, Ms. Hibbard has not proven the existence of a vital link in her causation chain—namely, an autonomic neu-ropathy, or damage to the nerves of the autonomic nervous system. For the reasons explained below, the Court affirms the special master’s decision.

Factual Background

Jennifer Hibbard is an adult woman, born on February 17, 1962, whose health began to deteriorate shortly after receiving a Trivalent Influenza (“flu”) vaccination on November 1, 2003. (Am.Pet. ¶ 1.) Before receiving this flu vaccination, Ms. Hibbard taught first grade at Beechwood Knoll Elementary School in Quincy, Massachusetts and led an active and generally healthy life. She had an episode of fainting on May 27, 2003. (Pet’r’s Ex. 18 at 2.) At the time of the fainting episode, Ms. Hibbard’s primary care physi-[744]*744eian, Dr. Amy Schoenbaum, assessed the occurrence as “probably related to some mild dehydration.” (Pet’r’s Ex. 23 at 230.)

Ms. Hibbard stated in an affidavit that she received a flu shot on November 1, 2003 to protect herself from the germs and illnesses that can be conveyed from frequent contact with small children in the classroom and at extracurricular events. (Pet’r’s Ex. 33 at ¶ 2.) At one such school event, Ms. Hibbard offered herself for “auction,” and she was scheduled to take two students who “won her” in the auction to South Shore Plaza for lunch and shopping on November 8, 2003, seven days after she received the flu vaccination. Id. at ¶ 5. Although Ms. Hibbard had experienced aches, fatigue, and nausea during the previous week, she decided not to cancel the shopping trip because she did not want to disappoint her students. Id. at ¶¶ 4, 6.. During the shopping trip, however, Ms. Hibbard became very ill. Id. at ¶ 8. She “felt nauseous, sweaty, flushed, chills, dizzy, as though [she] might vomit and have diarrhea.” Id. The lights bothered her, and other people’s movement made her feel off-balance. Id. at ¶ 9. At one point, she felt as though she might pass out. Id. at ¶ 8. Worried that she could not adequately supervise her students in this condition, she ended the shopping trip early. Id. at ¶¶ 8-10. Despite feeling dizzy, she drove herself home. Id. at ¶ 11.

After this shopping event, Ms. Hibbard’s condition did not improve. At first, a doctor at her primary care facility diagnosed her with sinusitis and prescribed an antibiotic for her. (Pet’r’s Ex. 23 at 225.) When two antibiotics proved unhelpful, Ms. Hibbard went to the emergency room at Brigham and Women’s Hospital on December 12, 2003. Dr. Schoenbaum was concerned that Ms. Hibbard may have Guillain Barré Syndrome (“GBS”), a neurological and autoimmune disorder associated with progressive weakening or paralysis, see Dorland’s, supra, at 1832, but Ms. Hibbard’s neurological exam was normal, leading the treating physician to conclude that GBS “was unlikely” and to clear her for discharge. (Pet’r’s Ex. 23 at 27.) The next day, however, an ambulance took Ms. Hibbard to the hospital after she experienced breathing difficulty, and this time, doctors performed an extensive workup. (Pet’r’s Ex. 25 at 3; Pet’r’s Ex. 33 ¶ 16.) When neurological tests revealed nothing abnormal, doctors recommended that Ms. Hib-bard receive a psychiatric evaluation. (Pet’r’s Ex. 23 at 21.)

The psychiatrist found that Ms. Hibbard’s thought processes were “organized and logical,” that she “d[id] not meet diagnostic criteria for either a mood or anxiety disorder,” and that her condition did not warrant the prescription of antidepressant or antianxiety medications at that time. Id. at 72-73. However, remaining debilitated by her symptoms for the following months, Ms. Hibbard began “experiencing anxiety and depression secondary to the symptoms,” according to Dr. Schoenbaum. Id. at 251.

Meanwhile, Ms. Hibbard continued to see medical specialists whom she hoped could diagnose and treat her physical symptoms. First, on March 11, 2004, she saw Dr. Louise Ivers, a specialist in infectious diseases at Brigham and Women’s Hospital. (Pet’r’s Ex. 23 at 176-77.) Dr. Ivers was unable to determine any particular diagnosis but concluded “it is unlikely that any known infectious disease entity [was] the cause of [Ms. Hib-bard’s] symptoms.” Id. at 177. On April 6, 2004, Ms. Hibbard saw Dr. Brian Kim, an endocrinologist at Brigham and Women’s Hospital, who had “no clear endocrine explanation for Jennifer’s symptoms.” Id. at 173-74. Dr. Mary Ampola, a metabolic specialist whom Ms. Hibbard saw on April 15, 2004, proposed that Ms. Hibbard’s symptoms “are suggestive of a mitochondrial disorder.” (Pet’r’s Ex. 20 at 4.) Dr. Steven Rauch, an ear, nose and throat specialist whom Ms. Hibbard saw on April 16, 2004, however, thought Ms. Hibbard’s condition was “a case of migraine related dizziness.” (Pet’r’s Ex. 59 at 1.)

By the end of April 2004, Ms. Hibbard's doctors seemed more focused on neurological disorders—specifically, disorders of the autonomic nervous system. On April 23, 2004, Ms. Hibbard saw Dr. Mark Creager, a cardiovascular physician, who evaluated her for mitral valve prolapse and dysautonomia. (Pet’r’s Ex. 23 at 159.) Dr. Creager concluded that “[s]he does not have clinical or echo-[745]*745cardiographic evidence of mitral valve prolapse” and that “she does not have any clear-cut evidence of any dysautonomic syndromes, though admittedly dysautonomia is a difficult diagnosis to make.” Id. at 160. On May 10, 2004, Ms. Hibbard saw Dr. Richard Lewis, a specialist in otology, neurotology, and oto-neurology. (Pet’r’s Ex. 59 at 2-3.) Dr. Lewis recommended that Ms. Hibbard “be evaluated by someone with expertise in autonomic function given her prominent fatigue, light-headedness, palpitations and temperature irregularities.” Id. On June 1, 2004, Ms. Hib-bard saw Dr. Louis Caplan, a neurologist at Beth Israel Deaconess Medical Center. (Am.Pet. ¶ 19.) Dr. Caplan believed that Ms. Hibbard “had a postinfeetious neuropathy2 with autonomic features,” which he further described as “a kind of Guillain Barré with partial dysautonomia.” (Pet’r’s Ex. 7 at 2.) He referred her to GBS expert Dr. Kenneth Gorson at St. Elizabeth’s Medical Center. Id.

Ms. Hibbard saw Dr. Gorson on June 7, 2004. (Pet’r’s Ex. 3 at 2.) Dr. Gorson performed a detailed neurological examination, which was mostly normal. Id. Heart rate variability testing, however, showed results on the “borderline” between normal and abnormal. Id. Although Dr.

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100 Fed. Cl. 742, 2011 U.S. Claims LEXIS 1856, 2011 WL 3941030, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hibbard-v-secretary-of-health-human-services-uscfc-2011.