Schumacher v. Secretary of Dept. of Health & Human Services

26 Cl. Ct. 1033, 1992 U.S. Claims LEXIS 377, 1992 WL 199822
CourtUnited States Court of Claims
DecidedAugust 5, 1992
DocketNo. 90-1621V
StatusPublished
Cited by4 cases

This text of 26 Cl. Ct. 1033 (Schumacher v. Secretary of Dept. 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.

Bluebook
Schumacher v. Secretary of Dept. of Health & Human Services, 26 Cl. Ct. 1033, 1992 U.S. Claims LEXIS 377, 1992 WL 199822 (cc 1992).

Opinion

OPINION

MEROW, Judge.

This vaccine case comes before the court on a motion for review filed by the respondent on May 16, 1992, challenging the Special Master’s April 24, 1992 decision in this matter.

Petitioner, Donald Schumacher, Sr., as administrator of the Estate of Donald Schumacher, Jr. (hereinafter Donny), deceased, commenced an action in this court on September 27, 1990, under the National Childhood Vaccine Compensation Act of 1986, codified as amended at 42 U.S.C. §§ 300aa-l et seq. (West Supp.1991) (Vaccine Act), seeking compensation for Donny’s death which occurred on March 4, 1982. Petitioners allege that Donny suffered injuries compensable under the Vaccine Act as a result of DPT vaccine inoculations administered on November 24, 1981 and January 8, 1982. Specifically, the petitioners alleged that Donny had a preexisting neurological condition which was substantially aggravated by the vaccinations and which precipitated his death.

A hearing was held on October 29, 1991 and continued by telephone on November 13, 1991. Testifying for petitioner was Mrs. Sharon Schumacher, Donny’s mother, and Marcel Kinsbourne, M.D., a board certified pediatrician qualified as a pediatric neurologist. Testifying for respondent was Lester Adelman, M.D., a board certified neuropathologist, and Harold Fogelson, M.D., a board certified pediatric neurologist. Special Master Baird issued his decision on April 24, 1992, in which he determined that Donald Schumacher, Jr.’s preexisting condition was seriously aggravated by the receipt of a DPT vaccine on January 8, 1982, and that this aggravation was the cause of his death.1

[1035]*1035Pursuant to 42 U.S.C. § 300aa-12(e)(l), respondent filed a timely motion on May 26,1992, seeking review in this court of the Special Master’s decision. Respondent’s motion is based on two alternate grounds: first, respondent contends that the Special Master erred as a matter of law in finding that the petition in this case was not barred by 42 U.S.C. § 300aa-ll(a)(5)(B) because of the existence of a pending civil suit at the time the petition for vaccine compensation was filed; and second, respondent contends that the Special Master’s finding that Donny’s pre-existing medical condition was seriously aggravated by the DPT vaccine was arbitrary and capricious and thus the decision should be set aside. After a careful review of the Special Master’s decision and the entire record, the Special Master’s findings of fact and conclusions of law are upheld and his decision is sustained.

BACKGROUND

Donald Schumacher, Jr. (hereinafter Donny) was born on August 12, 1981 in Leominster, Massachusetts. Donny was delivered by Caesarean section with no apparent abnormalities and appeared to have been doing well during the first two months of his life. The only history of illness was colic which was being treated with the anti-colic medication Bentyl for approximately one week prior to October 13, 1981. On that date, Donny suffered cardiopulmonary arrest and was discovered by his parents as cyanotic and apneic.2 There is conflicting evidence as to how long Donny had stopped breathing before he was discovered by his parents, but it appears that it could have been as long as 10-15 minutes. Donny was taken to Burbank Hospital by ambulance where his heart rate was reestablished by CPR and medication. He was then transferred to the University of Massachusetts Medical Center with a diagnosis of cardiopulmonary arrest.

During his hospital stay, Donny was placed on a respirator. He had episodes of apnea and bradycardia and started experiencing seizure activity on October 14. On October 16, 1981, an order was given by Donny’s mother not to resuscitate in the event of another cardiac arrest. The impression of Dr. Paul C. Marshall, the treating neurologist at the University of Massachusetts, was that Donny was severely impaired as evidenced by abnormal EEG readings (which indicated multifocal spikes) and Donny’s overall clinical condition. Donny was comatose until November 5. He did not have seizures the last two weeks of hospitalization and was discharged to his parents home on November 18, 1981. He was unable to feed himself or clear his secretions thus requiring supportive home care, i.e., nasogastric tube feedings, manual suctioning and chest physiotherapy, after discharge.

Donny suffered a seizure a few days after he was discharged, but his mother testified that he appeared to be getting better after he was released from the hospital. The parents noticed cyanosis around Donny’s lips and contacted his pediatrician, Dr. Martin Feldman, who advised them to obtain a cardiac monitor which would sound an alarm in the event Donny’s breathing or heart stopped.

[1036]*1036On November 24, 1981, Dr. Feldman administered Donny’s first DPT shot. The extent of Donny’s seizure activity between his discharge and the first DPT shot is unclear. Donny had seizures on November 25 and was hospitalized on November 27 because of increased seizure activity, apnea and bradycardia. Examination during this hospitalization indicated that Donny did not exhibit normal neurological functions for his age; he was not responsive to auditory or visual stimuli, and had no responsive suck or startle, but was able to move all extremities. He was hospitalized until December 11, 1981 and his condition upon discharge was classified as “Poor” by Dr. Paul C. Marshall. The parents obtained an ambubag and oxygen for home use.

On January 8, 1982, Donny visited his pediatrician. Dr. Feldman’s notes from January 8 indicate that Donny’s cardiac monitor had not gone off in 1.5 weeks that he was able to roll front to back, smile, follow his mother, and react to noise. Mrs. Schumacher testified that Donny could cry, lift his head up, push himself up and move his arms. Donny was administered his second DPT shot on that date.

On January 9, 1982, the morning after his second DPT shot, Donny had a fever of 102.4 and had increased seizure activity. He was taken to the hospital with a complaint of “fever seizures” and a temperature of 101.9. He was transferred to the University of Massachusetts where he remained until January 13. During his hospitalization he had numerous seizures, bradycardia episodes and apnea requiring stimulation or bagging. Dr. Marshall noted in the discharge summary, inter alia, that Donny had been “relatively seizure free for the past two weeks” and that he had a weak suck, relatively good neck control and that he could raise himself to tripod position. These were mild developmental milestones, and Donny’s condition upon discharge was “Fair.”3 Donny visited Dr. Marshall on January £8, 1982 who concluded that while Donny was “showing some very minimal developmental progress” the overall outlook for him was poor.

Donny saw Dr. Feldman on February 9, 1982. Dr. Feldman’s notes indicated that Donny had a seizure a few days before and that his apnea monitor had been sounding two to three times a night, which, according to Donny’s mother, did not necessarily indicate that Donny was having a seizure. Dr. Feldman also noted that Donny appeared more alert and was eating baby food well.

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26 Cl. Ct. 1033, 1992 U.S. Claims LEXIS 377, 1992 WL 199822, Counsel Stack Legal Research, https://law.counselstack.com/opinion/schumacher-v-secretary-of-dept-of-health-human-services-cc-1992.