Morris v. Secretary of the Department of Health & Human Services

57 Fed. Cl. 383, 2003 U.S. Claims LEXIS 223, 2003 WL 21997734
CourtUnited States Court of Federal Claims
DecidedJune 27, 2003
DocketNo. 99-412V
StatusPublished
Cited by5 cases

This text of 57 Fed. Cl. 383 (Morris v. Secretary of the 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.

Bluebook
Morris v. Secretary of the Department of Health & Human Services, 57 Fed. Cl. 383, 2003 U.S. Claims LEXIS 223, 2003 WL 21997734 (uscfc 2003).

Opinion

OPINION

FIRESTONE, Judge.

Pending before the court is petitioners Sonya and David Morris’ motion, on behalf of their daughter, Taylor, for review of Special Master Millman’s December 18, 2002 decision dismissing their petition for compensation under the National Vaccine Injury Compensation Act, 42 U.S.C. § 300aa-10— aa-23 (“Vaccine Act” or “Act”). Petitioners argue that the Special Master erred when she found that the vaccine did not cause Taylor’s transverse myelitis (“TM”).1 2De-fendant Secretary of Health and Human Services (“government”) argues in response that the Special Master’s decision, finding that the vaccine did not cause Taylor’s TM, should be upheld. For the reasons that fol[384]*384low, the decision of the Special Master is hereby AFFIRMED.

BACKGROUND

A. Facts

1. Medical Records

The facts from Taylor Morris’ medical records that are relevant to this motion are as follows. Taylor Morris was born on March 10,1996. On July 12,1996, at the age of four months, Taylor received her second oral polio vaccine (“OPV”).2

On August 8, 1996, less than thirty days after Taylor received the second OPV, Mr. and Mrs. Morris took Taylor to Dr. L.E. Nickerson’s office with complaints of respiratory distress and lethargy. According to Dr. Nickerson’s records, Taylor presented with respiratory distress, tachypnea, lethargy and a 101 fever. The physician assistant noted that Taylor was “lethargic but alert and responsive, perfusing without difficulty, and sucking a bottle well.” Morris, 2002 WL 31965739, at *2. Taylor’s neurological examination was normal. Pet’rs Exhibit 6 at 45. Dr. Nickerson recorded that Taylor’s parents indicated that Taylor did not have any “nausea, vomiting, diarrhea, rash, mental status changes, or signs or symptoms consistent with a more systemic type of toxicity.” Morris, 2002 WL 31965739, at *2. The treating physician opined that Taylor had a reactive airway disease that was exacerbated by the air trapping shown on Taylor’s chest x-ray. Id. at *3.

Taylor was admitted to Rowan Regional Medical Center on August 8,1996 with symptoms including air trapping, rapid respiration, sudden onset of lethargy, and expiratory wheeze. On August 10, Taylor began to show neurological symptoms. The examining physician noted that Taylor’s right pupil was more dilated than her left and that she did not grasp well. She also had flaccidity in her left upper and lower extremities, which was more pronounced in the lower portion. Her cerebrospinal fluid was tested at both twenty-four and forty-eight hours after admittance, both samples were negative. A chest x-ray showed mild hyperinflation of her lungs with air trapping, and a CT scan of her brain on August 11, 1996 showed a slight prominence of her ventricles without acute process.

Taylor was initially treated with steroids and antihistamine decongestants but without improvement. Taylor’s breathing improved after she was placed in a croup tent and given medications. After Taylor’s respiratory problems improved, concern switched to addressing Taylor’s neurological symptoms. The hospital records describe Taylor’s diagnosis upon discharge as “transverse myelitis with neurologic sequelae.” Pet’rs Exhibit 6 at 43. Her secondary diagnosis was “mild reactive airway disease with air trapping.” Id.

On August 12, 1996, Taylor was transferred to the Carolinas Medical Center (“Carolinas”) in Charlotte, North Carolina in order to deal with Taylor’s neurological symptoms. Her left pupil was slightly smaller than her right, but both were reactive. She had “mild facial droop, and decreased use of her left arm.” Morris, 2002 WL 31965739, at *4. Once again, both a spinal tap and a CT scan came back negative, however, a MRI showed a swollen cervical cord suggesting TM.

Dr. Paul A. Knowles, a consulting pediatric neurologist, recorded that Taylor’s lungs were clear, but that she had a flaccid left arm with an asymmetric face. He wrote that her lower extremities moved symmetrically but that there was a slight decrease in tone bilaterally. He listed Horner’s syndrome3 with brachial plexopathy as a possible cause of Taylor’s symptoms. After ordering MRIs [385]*385of her brain and cervical spine, Dr. Knowles wrote to Dr. Nickerson that Taylor’s enlarged cervical cord was consistent with TM.4 Taylor was discharged from the hospital on August 15, 1996 and began to receive physical and occupational therapy for her condition.

On August 7, 1998, a physical therapist worked with Taylor at Shriners Hospital. The physical therapist’s record, of which only one page was filed with the Special Master’s office, generally describes Taylor’s medical history. The record does note that, following Taylor’s diagnosis of TM, her developmental milestones were delayed, and that she had frequent urinary tract infections.

Dr. L. Andrew Koman provided a history on August 25, 2000 similar to those that had been previously recorded. Dr. Koman believed that Taylor’s TM was localized to her upper lumbar region, a diagnosis based simply on her history and not on films or lumbar puncture results. Dr. Cesar C. Santos and his resident Dr. Tarek A. Kadrie, also examined Taylor on August 25th. Those notes state that Taylor’s hips had decreased abduction to 35 and that the tone in her lower extremities was markedly increased.

Taylor’s MRI taken on August 30, 2000 was normal. On September 1, 2000, Taylor had a radiologic test on her pelvis that showed widening at her lower lumbar and sacral vertebrae, findings consistent with myelomeningocele.5

Petitioners filed Rowan Medical Center’s interpretation of Taylor’s CT scan dated August 11, 1996 and Wake Forest University Baptist Medical Center’s interpretation of Taylor’s August 30, 2000 MRI of her lumbar spine. The defendant’s expert, Dr. Gerald V. Raymond, filed a supplemental report on April 16, 2002, in which he references an MRI, magnetic resonance angiography and cervical cord examination from August 12, 1996 and a lumbosacral MRI from August 30, 2000.

2. The Evidentiary Hearing

On June 28, 1999, the petitioners filed a petition for compensation under the Vaccine Act, as parents and next friends of their daughter, Taylor, claiming that her TM and subsequent developmental delays were caused by the OPV administered on July 12, 1996. Petitioners alleged that Taylor experienced TM, a condition that is not a Table Injury under the Vaccine Act. Petitioners further assert that there is a logical sequence of cause and effect showing that the OPV was the reason for the TM. In opposition, the government contended that the medical documentation in the case failed to support the petitioners’ claim.

On November 29, 2001, the Special Master held an evidentiary hearing on the claim. Testifying for the petitioners, the Special Master heard from David H. Morris, Taylor’s father; Sonya Morris, Taylor’s mother; and Dr. Carlo Tornatore, an adult neurologist with interests in viral molecular pathogenesis. Testifying for the government was Dr. Gerald V. Raymond, a pediatric neurologist with experience in developmental neuro-pathology.

During the evidentiary hearing, Mr. Morris testified that on August 8, 1996, Taylor was in good health.

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57 Fed. Cl. 383, 2003 U.S. Claims LEXIS 223, 2003 WL 21997734, Counsel Stack Legal Research, https://law.counselstack.com/opinion/morris-v-secretary-of-the-department-of-health-human-services-uscfc-2003.