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

28 Fed. Cl. 516, 1993 U.S. Claims LEXIS 61, 1993 WL 191880
CourtUnited States Court of Federal Claims
DecidedMay 24, 1993
DocketNo. 90-1114V
StatusPublished
Cited by135 cases

This text of 28 Fed. Cl. 516 (Reusser 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
Reusser v. Secretary of the Department of Health & Human Services, 28 Fed. Cl. 516, 1993 U.S. Claims LEXIS 61, 1993 WL 191880 (uscfc 1993).

Opinion

[518]*518OPINION

YOCK, Judge.

This vaccine case is before the Court on a Motion for Review of Special Master’s Decision, filed by petitioners on January 21, 1993, challenging the special master’s decision denying their claim for compensation.

Petitioners, Kenneth Reusser and Brenda Reusser, filed a petition on behalf of their son, Jonathan, for compensation under the National Vaccine Injury Compensation Program, codified as amended at 42 U.S.C.A. §§ 300aa-l et seq. (West 1991) (Vaccine Act). Petitioners allege that Jonathan suffered injuries compensable under the Vaccine Act as a result of DPT vaccine inoculations administered on August 12, 1985, and September 11, 1985. An eviden-tiary hearing was held on January 30,1992, in Washington D.C., during which the special master heard both lay and expert testimony. The special master issued her decision on December 21, 1992, in which she determined that the petitioners had failed to establish, by a preponderance of the evidence, their right to entitlement under the Vaccine Act.

Pursuant to 42 U.S.C.A. § 300aa-12(e)(l) (West 1991), petitioners filed a timely motion on January 21, 1993, seeking review in this Court of the special master’s decision. For the reasons discussed herein, the petitioners’ motion for review is denied, and the decision of the special master is affirmed.

FACTS

Jonathan was born on June 11, 1985, to petitioners Brenda Reusser and Kenneth Reusser. The pregnancy was complicated by spotting in the first trimester and leakage of fluid later in the pregnancy. Although he was slightly jaundiced, Jonathan appeared otherwise healthy at birth, with an official birth weight of seven pounds, fifteen ounces, and APGAR scores of eight and nine.1

According to Mrs. Reusser, Jonathan behaved like a perfectly normal baby for the first two months of his life. Mrs. Reusser testified that Jonathan could move about in his crib, lift his legs off the floor, and lift his head up and hold it at midline. Medical records dated June 30, 1986, contain a history that Jonathan “was not an extremely good feeder from the beginning,” but to the contrary, Mrs. Reusser testified that Jonathan nursed on demand at regular intervals without any difficulty.

On August 12, 1985, Mrs. Reusser took Jonathan to the office of his pediatrician, Doctor Climaco, in Rock Springs, Wyoming, for his two-month checkup. At the beginning of this visit, Doctor Climaco put Jonathan through a battery of routine motor tests, one of which involved pulling Jonathan from a prone position into a sitting position. Doctor Climaco made a notation in Jonathan’s chart that contained the words “head control” followed by plus and minus signs. In a written response to a request by the special master for a clarification of the meaning of the notation, Doctor Climaco explained:

[M]y note reflects that I questioned his head control with a plus, minus marks, [sic] Whether there was head lag, poor head stability when on prone position or just “not right” and proper head control for his age (8 weeks), I noted head control with plus, minus signs. These signs are to caution myself to follow up this aspect of his development. If totally healthy at that point, a mere “ess. healthy” would have been entered.

During the office visit, Jonathan received his first DPT shot at 2:00 or 2:30 p.m. In accordance with the nurse’s instructions, Mrs. Reusser took Jonathan home and gave him Tylenol.

Mrs. Reusser testified that 45 minutes to an hour after Jonathan received the DPT shot, he began crying. According to Mrs. Reusser, Jonathan’s crying “progressed to [519]*519a screaming kind of cry” and he developed a fever of over 104 degrees. Jonathan’s leg felt hot and was swollen from his knee to his buttocks. Mrs. Reusser testified that she called the emergency room nurse after business hours because she could not reach Doctor Climaco. The nurse assured Mrs. Reusser that it was common for babies to react that way after their first DPT vaccination and that it was nothing to worry about. She instructed Mrs. Reusser to put a cool compress on Jonathan’s leg and to continue to give him Tylenol. Mrs. Reusser testified that she followed the nurse’s instructions, but to no avail. Jonathan’s screaming did not subside and the fever did not come down. Mrs. Reusser’s sister, Debra Tamosauskas; came over to help. Mrs. Reusser testified that they sponged Jonathan in a tepid bath at around 6:30 or 7:00 that evening, and that subsequently, Jonathan's temperature came down to approximately 101 degrees. Mrs. Reusser testified that Jonathan did not stop crying until around midnight, when he finally fell asleep.

Mrs. Reusser woke Jonathan the morning of August 13 because he had missed both his bedtime feeding and midnight feeding. Mrs. Reusser testified that Jonathan drained only one breast during this feeding, and she attributed this to the fact that she was so full of milk. According to Mrs. Reusser, Jonathan slept most of the day and was “very irritable when he was awake.” Mrs. Reusser described Jonathan’s condition that day as “hypotonic” and “limp.” Jonathan did not wake up on his own to feed, so every two to four hours Mrs. Reusser woke Jonathan to nurse him. Mrs. Reusser recalls that Jonathan seemed to have difficulty coordinating his breathing with his nursing. He would fall asleep after the feedings, and sometimes even during the feedings. At the time, Mrs. Reusser believed this was because he was worn out from crying all day the day before. That night, Jonathan woke up every one or two hours. Mrs. Reusser testified that he wouldn’t feed and that he was “grumpy and agitated and fussy.”2

Mrs. Reusser testified that in the days that followed, Jonathan did not seem like himself. His sleeping problems and irritability persisted, and he “seemed weak and unwell.” In addition, Mrs. Reusser testified that Jonathan’s breathing pattern was different and that he no longer moved around in his crib. According to Mrs. Reusser, Jonathan had lost the ability to raise his head for any length of time when he was lying on his stomach.

About ten days or two weeks after Jonathan received his first shot, Mrs. Reusser called Doctor Climaco’s office and told the receptionist that she would like Doctor Cli-maco to take a look at Jonathan because he did not seem to be bouncing back from his DPT shot. Mrs. Reusser testified that the nurse called her back and assured her that Jonathan probably just had a virus and that his condition was unrelated to the shot.

On September 11, 1985, when Jonathan was three months old, Mrs. Reusser took him back to Doctor Climaco’s office. Jonathan received his second DPT shot during this visit. According to Mrs. Reusser, by this time Jonathan had lost all control of his head. Mrs. Reusser testified that when Doctor Climaco pulled Jonathan up into a sitting position, his head “just hung backwards the whole time.” Doctor Climaco’s notes from this visit indicate, “head control — poor.” Doctor Climaco assured Mrs. Reusser that Jonathan simply had weak neck muscles, and suggested some neck exercises to perform with Jonathan. Doctor Climaco informed Mrs. Reusser that Jonathan’s breathing patterns were normal and advised her to give Jonathan Mylicon for colic.

Mrs. Reusser testified that after the second DPT shot, Jonathan got a fever of around 102 or 103 degrees and cried until approximately 10:00 that night. According to Mrs.

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28 Fed. Cl. 516, 1993 U.S. Claims LEXIS 61, 1993 WL 191880, Counsel Stack Legal Research, https://law.counselstack.com/opinion/reusser-v-secretary-of-the-department-of-health-human-services-uscfc-1993.