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

23 Cl. Ct. 726, 1991 U.S. Claims LEXIS 389, 1991 WL 163113
CourtUnited States Court of Claims
DecidedAugust 9, 1991
DocketNo. 90-882V
StatusPublished
Cited by609 cases

This text of 23 Cl. Ct. 726 (Murphy v. Secretary of the Department of Health & Human Services) is published on Counsel Stack Legal Research, covering United States Court of 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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Murphy v. Secretary of the Department of Health & Human Services, 23 Cl. Ct. 726, 1991 U.S. Claims LEXIS 389, 1991 WL 163113 (cc 1991).

Opinion

OPINION

NETTESHEIM, Judge.

This case is before the court on petitioners’ motion for review of a special master’s dismissal of their petition for compensation brought under the National Childhood Vaccine Injury Act of 1986, 42 U.S.C. §§ 300aa-l—300aa-34 (1988), as amended by several public laws codified in 42 U.S.C.A. §§ 300aa-l—300aa-34 (West Supp.1991) (“the Act”). The issues upon review are whether the special master’s denial of petitioners’ motion for an eviden-tiary hearing, his interpretation of what constitutes “significant aggravation” of a seizure disorder, and his findings were arbitrary and capricious. Argument is deemed unnecessary.

FACTS

The following facts found by the special master or in the record before the special master are not contested, unless otherwise noted. Christopher Carl Murphy was bom on August 28, 1976, in Pitt County Memorial Hospital (“Pitt Memorial”), Greenville, North Carolina, to Rexford and Debbie Fields Murphy (“petitioners”). Although Mrs. Murphy experienced vaginal bleeding, as well as the threat of premature labor in her sixth month of pregnancy, Christopher was pronounced a healthy baby upon delivery, weighing 8 pounds, 5 ounces, with APGAR scores of 9 and 10. Christopher’s head size at birth was 36 centimeters (“cm.”), which placed him in the 85th percentile for newborn males.

On September 16, 1976, Christopher received his first well-baby checkup. The doctor noted that his head size had increased to 39 cm., which placed Christopher in the 97th percentile for males. In her supplemental affidavit dated March 27, 1991, Mrs. Murphy revealed that the doctor discussed the possibility of hydrocephalus or other neurological problems with her on this occasion. Supplemental Affidavit of Debbie Fields Murphy, Mar. 27, 1991, 114.

Christopher returned to the doctor for a checkup on October 11, 1976. His head had grown to 41 cm., an abnormally large size. The doctor again raised the possibility of neurological problems. He also noted two white ash leaf-shaped spots on Christopher’s chest, suggesting that they might be symptoms of a very rare disease. Christopher received his first DPT shot during this visit.

In her March 27, 1991 supplemental affidavit, Mrs. Murphy avers the following series of events after the vaccination:

Within eight hours of his first DPT shot Christopher began to have three symptoms of a reaction to the vaccine, unusual high pitched shrill screaming of hours’ duration, periods where he would go completely limp for a few seconds (symptoms of encephalopathy) and infantile spasms (seizures). He began having episodes of prolonged unusual high pitched screaming. He was stiff as a board with his legs straight out and stiff and NOTHING could be done to console him. He acted as if he was totally unaware that we were trying to console [728]*728him or were even there. The second kind of spell also started within eight hours and it was particularly noticeable as not being normal behavior in an infant when he was sitting in his infant seat. He would have clusters or series of jerking spells in which his arms would fly up and his legs out, almost identical to the infant shown in the Great Britain video on Tuberous Sclerosis having infantile spasms in series. Sometimes he would give a little cry after each jerk and/or a tear would run down his cheek, and the interval between spasms would be 10 to 50 seconds. They were not precipitated by unexpected loud noises or stimulation. Sometimes his eyes would roll to the side or back during a spasm. If you were holding him in a sitting position he would suddenly fall forward with great force over and' over in series.

Suppl. Murphy Aff. 117 (emphasis in original). Although Mrs. Murphy submitted a 1978 calendar and a handwritten diary recording significant events in Christopher’s early years, her calendar and diary entries did not note this information. Mrs. Murphy claims that she discussed these episodes with doctors by telephone, but no medical reports were submitted that verified these conversations.

Mrs. Murphy, however, did take Christopher to the emergency room at Pitt Memorial on October 18, 1976, after a three-hour crying spell that was followed by high-pitched shrill crying and screaming for about an hour.1 The examining doctor suspected that gas pains were the cause of the spells and found him to be normal in other respects. Mrs. Murphy noted the “piercing screaming for [an] hour” in her diary for October 18, 1976.

Christopher received his second DPT shot on November 11, 1976. During the visit, his head size measured 43 cm. The only comment noted by the doctor was Christopher’s decreased irritability after administration of the second vaccine. Mrs. Murphy claims that “Chris’s screaming and jerking spells (infantile spasms) immediately worsened, dramatically, and he could not go to sleep because the jerking spells kept waking him up every time he would doze off.” Suppl.Murphy Aff. 1112. Mrs. Murphy did not record this reaction in her diary.

On November 27,1976, Christopher experienced his first documented seizure. At this time he was admitted to Pitt Memorial and diagnosed as having a seizure disorder. The hospital records note his background as “essentially benign” with the exception of his large head. There were no notations of any prior seizures. In addition, the result of an electroencephalogram (“EEG”) test indicated an abnormal pattern consistent with a seizure disorder.

Christopher’s third DPT was administered on December 13, 1976. At this time his head size measured 44.5 cm., which is highly abnormal. Christopher was treated with phenobarbital at that time and the doctor reported that he had experienced no seizures. Although Mrs. Murphy’s diary did not reflect this information, her supplemental affidavit stated that “after the third DPT, Chris within eight hours showed a return of his seizures, worse than be-fore____” Suppl.Murphy Aff. 1116. Approximately one month later, on January 13, 1977, Christopher was admitted to Pitt Memorial as a result of his seizures. An additional medicine was prescribed, and he was released the following day.

Christopher received his fourth DPT on March 14, 1978. No medical records document an increase of seizure activity on this date. Mrs. Murphy in her diary noted that the vaccination was administered, but did not mention any change in his condition. She did, however, record a “fever” on March 15, 1978, and “screaming” on March 16, 1978, on a monthly calendar. Mrs. Murphy’s supplemental affidavit states that seizure activity increased dramatically following the vaccination. Suppl.Murphy Aff. ¶ 27.

On March 30, 1978, Christopher was readmitted to Pitt Memorial because “he was either in an almost constant staring spell [729]*729with head-drop type of seizures or having grand mal seizures of long duration.” Suppl.Murphy Aff. ¶ 28. During this hospitalization Christopher was diagnosed with tuberous sclerosis. At the present time Christopher is severely mentally retarded and developmentally slow, although he has not suffered seizures since 1985.2

On September 5, 1990, petitioners filed for compensation on behalf of their minor son Christopher. Following the status conference mandated by RUSCC Appendix J, (Vaccine) Rule 5, the special master issued an order allowing petitioners to file additional doctors’ expert statements.

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23 Cl. Ct. 726, 1991 U.S. Claims LEXIS 389, 1991 WL 163113, Counsel Stack Legal Research, https://law.counselstack.com/opinion/murphy-v-secretary-of-the-department-of-health-human-services-cc-1991.