Hoag v. Secretary of Health & Human Services

42 Fed. Cl. 238, 1998 U.S. Claims LEXIS 262, 1998 WL 784608
CourtUnited States Court of Federal Claims
DecidedOctober 15, 1998
DocketNo. 94-67V
StatusPublished
Cited by1 cases

This text of 42 Fed. Cl. 238 (Hoag 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
Hoag v. Secretary of Health & Human Services, 42 Fed. Cl. 238, 1998 U.S. Claims LEXIS 262, 1998 WL 784608 (uscfc 1998).

Opinion

ORDER

HORN, Judge.

The petitioners John Hoag and Patricia Hoag, acting on behalf of their daughter Cassandra Hoag, filed a petition under the National Vaccine Injury Compensation Act, 42 U.S.C. §§ 300aa-l to 300aa-34 (1994) (Vaccine Act),1 seeking on-table2 compensation for injuries allegedly sustained by Cas[240]*240sandra Hoag. Petitioners allege alternatively that Cassandra suffered an encephalopathy3 after her diphtheria-pertussis-tetanus (DPT) vaccination on February 7, 1991, or after her diphtheria-tetanus (DT) vaccination on March 20, 1991. Petitioners also allege alternatively that the February 7 and March 20 vaccinations in combination in fact caused Cassandra’s injuries. Furthermore, in the alternative petitioners allege that the March 20, 1991, DT vaccination significantly aggravated Cassandra’s encephalopathy which manifested after the earlier DPT vaccination. The Chief Special Master for the United States Court of Federal Claims denied each of the claims. Hoag v. Sec’y DHHS, No. 94-67V, slip op. at 6, 20, 1998 WL 408783 (Fed. Cl. April 22, 1998). The Chief Special Master’s decision was first issued as an unpublished opinion, but it was reissued for publication and can be found at Hoag v. Sec’y DHHS, No. 94-67V, 1998 WL 408783 (Fed. Cl. April 22, 1998).

Petitioners then filed a motion for review with this court pursuant to Appendix J, paragraph 26 of the Rules of the United States Court of Federal Claims (RCFC) limited solely to one issue concerning the significant aggravation allegation. Specifically, petitioners allege that the Chief Special Master failed to act in accordance with the law on significant aggravation as set forth in the Vaccine Act and enunciated in Whitecotton v. Sec’y DHHS, 81 F.3d 1099 (Fed.Cir.1996). The parties both agree that the Chief Special Master adopted the applicable four-part test in Whitecotton, but petitioners allege that the Chief Special Master improperly applied step four of that test (determining whether the first symptom or manifestation of the significant aggravation occurred within the three-day time period prescribed in the Vaccine Table). Petitioners allege that the Chief Special Master improperly framed the petitioners’ burden as “[t]he dispute thus settles on the question of when the diagnosis of the infantile spasm syndrome can be made.” Hoag v. Sec’y DHHS, No. 94-67V, slip op. at 15.

Petitioners seek review of their allegation that the March 7, 1991, DT vaccination significantly aggravated Cassandra’s preexisting encephalopathy. The petitioners allege that the Chief Special Master incorrectly applied the law regarding the burden placed on them by the Vaccine Act and required them “to show that what happened within three days of the March 20 DT was diagnostic of infantile spasms.” The petitioners state that:

The burden placed on the petitioners by the Special Master, i.e. to show “when the diagnosis of the infantile spasms can be made,” is unfair, unreasonable and unlawful. For a disease such as infantile spasms, the point at which the disease is diagnosed and treatments begun will vary depending on the judgment of the treating physician. Respondent’s expert, Dr. John MacDonald, agreed that after the March 22 spasms and the March 25 EEG there could have been a “heated debate” among qualified physicians as to whether treatment of Cassandra for infantile spasms should commence.

The petitioners argue that the standard set out in the Vaccine Injury Table, 42 U.S.C. § 300aa-14(a), states that “the first symptom or manifestation of a significant aggravation” of an encephalopathy must occur within three days, yet the Chief Special Master predicated his decision to dismiss the case on the theory that Cassandra could not be diagnosed with such injuries within three days. The petitioners argue that “[njowhere is there any suggestion that showing the first symptom or manifestation of a significant aggravation means showing that point in time when the significant aggravation ‘can be diagnosed.’ ” Rather, petitioners suggest that they were required to show that the first symptoms of significant aggravation were present within the time period mandated by the statute regardless of whether the symptoms could be diagnosed.

After careful consideration of the record, the filings submitted by both parties, and the relevant law, the court finds that the Chief Special Master acted in accordance with the law. Thus, the court upholds the judgment [241]*241of the Chief Special Master denying compensation under the Vaccine Act for the petitioners.

FACTS

Cassandra Hoag was born on November 2, 1990 and progressed normally for the first two months. On February 7, 1991, Cassandra received her first DPT vaccination. On February 17, 1991, John and Patricia Hoag, Cassandra’s parents, brought Cassandra to the University of Florida’s Shands Hospital where Cassandra was diagnosed with “[a]pnea, most likely due to seizure activity.” Although an electroencephalogram (EEG) indicated that Cassandra had normal brain activity, the treating physicians administered an anti-seizure medication, phenobarbital, because they suspected seizure activity. These seizures continued over the next month and were characterized by apnea,4 cyanosis,5 arching of the back, stiffness, and jerking.

On March 20, 1991, Cassandra received her DT vaccination. Thereafter, on March 22, 1991, Cassandra had three seizures characterized by “very shallow breathing, staring, stiffening and arching of her trunk and flex-ion of one or both arms.” A subsequent EEG performed on March 25, 1991, was “highly suggestive of the development of infantile spasms (West syndrome).” However, a further Video/EEG commencing on March 27, 1991, and ending on March 30, 1991, indicated that “[ajlthough the clinical history was consistent with infantile spasms, this continuous Video/EEG monitor demonstrates unequivoeally that the infant’s seizures are right temporal lobe in origin and clinically probably are complex partial in nature.” Dr. Gilmore, one treating physician, saw Cassandra on March 25, 1991, and stated that the child was not encephalopathic. Based on the test results, the treating physicians diagnosed Cassandra as having partial complex seizure disorder, and placed her on Tegretol, an anti-seizure medicine for treatment of that disorder.

On April 14,1991, Cassandra was reported as suffering from seizures characterized by “listless[ness], no smiling ____ [Fjlexion of arms [and] legs, flexion of head, churning [of] mouth____” The government’s expert, Dr. John MacDonald, testified that these symptoms were typical of partial complex seizures. However, on May 10, 1991, the treating physicians noted that “[t]he patient’s character of seizures has changed recently. She is not only having an increased frequency of events but she is now having bilateral movement of both upper extremities and legs resembling jackknife spasms.” At this point the doctors concluded that Cassandra suffered from infantile spasm syndrome.6

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42 Fed. Cl. 238, 1998 U.S. Claims LEXIS 262, 1998 WL 784608, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hoag-v-secretary-of-health-human-services-uscfc-1998.