Hovey v. Secretary of Department of Health & Human Services

38 Fed. Cl. 397, 1997 U.S. Claims LEXIS 136, 1997 WL 381344
CourtUnited States Court of Federal Claims
DecidedJune 19, 1997
DocketNo. 91-413 V
StatusPublished
Cited by116 cases

This text of 38 Fed. Cl. 397 (Hovey v. Secretary of Department 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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Hovey v. Secretary of Department of Health & Human Services, 38 Fed. Cl. 397, 1997 U.S. Claims LEXIS 136, 1997 WL 381344 (uscfc 1997).

Opinion

OPINION

MOODY R. TIDWELL, III, Judge.

This matter is before the court on petitioners’ motion for review of the Special Master’s decision to deny an evidentiary hearing and his decision to dismiss the petition brought under the National Childhood Vaccine Injury Act, 42 U.S.C. §§ 300aa-l to -34 (1994 & Supp. I 1995). For the reasons set forth below, the court holds that neither the special master’s denial of an evidentiary hearing nor the decision to dismiss the petition was arbitrary, capricious, or an abuse of discretion, and both decisions are therefore affirmed.

FACTS

Spencer and Hortence Hovey, as guardians, filed a vaccine-related injury claim for compensation on behalf of their disabled daughter, Carol Hovey, on January 30, 1991. Carol was born on April 5, 1960, and her physicians considered her to be a healthy, normal child. Carol’s medical records indicate that she experienced normal growth and development throughout her first three [399]*399months. On August 4, 1960, Carol received her first diphtheria, pertussis, tetanus and polio (DPT/P) vaccination at the Tanner Clinic in Layton, Utah. On September 8, 1960, Carol was supposed to receive her second DPT/P immunization from Dr. Kelly at the Tanner Clinic. The records from the second visit indicate that the second immunization was delayed for one week because Carol had an upper respiratory infection and red ears.

Petitioners claim that the second vaccination caused Carol to suffer encephalopathy. The term encephalopathy refers to “any significant acquired abnormality of, or injury to, or impairment of function of the brain.” 42 U.S.C. § 300aa-14(b)(3)(A). The signs and symptoms of encephalopathy include “changes lasting at least 6 hours in level of consciousness,____high pitched and unusual screaming, persistent unconsolable crying, and bulging fontanel.”1 Id.

The record presents conflicting accounts as to when the second DPT/P vaccination was administered. The contemporaneous medical records conflict with the affidavit testimony of Carol’s parents, family friends, and letters written by two doctors on December 12, 1990, in an attempt to recollect the events of September 21,1960.

The statement prepared by petitioners indicates that the second immunization was given to Carol on September 21, 1960, just before the onset of her seizures. Petitioners allege that Carol suffered a high fever, convulsions, and seizures within several hours after she received the vaccination. Carol was admitted to the hospital where she continued to have seizures. She remained in the hospital for six weeks and was discharged with a diagnosis of post-measles encephalitis. Following the hospitalization, Carol made a gradual but incomplete recovery. The effects continue to affect Carol to this day. She has poor speech, poor coordination and strength, and mental retardation.

The medical records indicate that Carol was given the vaccine one week before the seizure. The medical record of September 8, 1960 recommended that Carol “wait 1 wk” for her second DPT/P vaccination. The hospital case history of September 21, 1960, prepared on the date of her first seizure, stated that the second immunization was given “1 week ago.” Petitioners have not produced a vaccination record or any other documentation to confirm that Carol received a DPT/P vaccination on September 21, 1960.

Based on this evidence, the special master determined that Carol had not suffered an injury within the time limits of the vaccine table. Hovey v. Secretary of HHS, No. 91-413V (Fed.Cl.Sp.Mstr. Sept. 24, 1996) (order). On December 19, 1996, the special master issued a written decision that incorporated his September 24, 1996 order deny-, ing an award of compensation. Hovey v. Secretary of HHS, No. 91-413V (Fed.Cl.Sp. Mstr. Dec. 19, 1996) (dismissal order). The special master held that the Hoveys failed to establish that it is more likely than not that Carol received a DPT/P vaccination on September 21, 1960. Id. The special master found that Carol received her DPT/P vaccination one week prior to the September 21, 1960 hospitalization. Id. The special master denied petitioners’ motion for an evidentiary hearing. Id. The special master also dismissed the petition. Id.

In the motion for review, petitioners’ objections involve two issues: (1) whether the special master abused his discretion when denying their motion for an evidentiary hearing, and (2) whether the special master acted in an arbitrary and capricious manner when deciding to dismiss the petition.

DISCUSSION

I. Standard of Review

When deciding a motion to review a special master’s decision, the judges of this court shall:

(A) uphold the findings of fact and conclusions of law of the special master and sustain the special master’s decision,
[400]*400(B) set aside any findings of fact or conclusions of law of the special master found to be arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law and issue its own findings of fact and conclusions of law, or
(C) remand the petition to the special master for further action in accordance with the court’s direction.

42 U.S.C. § 300aa-12(e)(2).

In 1989, Congress amended the Vaccine Act to provide that this court shall not set aside a special master’s findings of fact or conclusions of law unless it determines them to be “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law.” National Childhood Vaccine Injury Act, Pub.L. No. 101-239, § 6601(h)(2)(B), 103 Stat. 2289-90 (codified at 42 U.S.C. § 300aa-12(e)(2)(B) (1994)). As a result, the issue now before the court is only whether the findings and conclusions of the special master are in accordance with the given standard of • review. This standard of review applies to all cases filed after the effective date of the amendment. § 6601(s)(l)(A), (C), 103 Stat. at 2293. The United States Court of Appeals for the Federal Circuit has explained that “[tjhese standards vary in application as well as degree of deference. Each standard applies to a different aspect of the judgment.” Munn v. Secretary of HHS, 970 F.2d 863, 870 (Fed.Cir.1992), cited in Dickerson v. Secretary of HHS, 35 Fed.Cl. 593, 597 (1996). Fact findings and discretionary rulings are reviewed under the arbitrary and capricious standard while legal questions are reviewed under the “not in accordance with law” standard. Id. Thus, both issues presented in this ease are reviewed under the “arbitrary and capricious” standard. Hines v. Secretary of HHS, 940 F.2d 1518, 1527 (Fed.Cir.1991); Murphy v. Secretary of HHS, 23 Cl.Ct. 726, 729 (1991), aff'd, 968 F.2d 1226 (Fed.Cir.), cert.

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38 Fed. Cl. 397, 1997 U.S. Claims LEXIS 136, 1997 WL 381344, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hovey-v-secretary-of-department-of-health-human-services-uscfc-1997.