Vaughan ex rel. A. H. v. United States

107 Fed. Cl. 212, 2012 U.S. Claims LEXIS 1500, 2012 WL 5990378
CourtUnited States Court of Federal Claims
DecidedNovember 14, 2012
DocketNo. 07-175V
StatusPublished
Cited by25 cases

This text of 107 Fed. Cl. 212 (Vaughan ex rel. A. H. v. United States) 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
Vaughan ex rel. A. H. v. United States, 107 Fed. Cl. 212, 2012 U.S. Claims LEXIS 1500, 2012 WL 5990378 (uscfc 2012).

Opinion

OPINION ON MOTION FOR REVIEW

DAMICH, Judge:

On June 4, 2012, Petitioner Megan Vaughan filed, on behalf of her daughter A.H., a petition for review of the Special Master’s Decision, 2011 WL 2945803, May 3, 2012, denying compensation under the National Child Vaccine Injury Compensation Act of 1986, 42 U.S.C. §§ 300aa-l et seq. (2006) (“Vaccine Act”). Ms. Vaughan had alleged that a series of five vaccinations that AH. had received on December 1, 2005, caused a basal ganglia bleed and caused AH. to suffer from a seizure disorder. On May 3, 2012, Special Master Gary Golkiewicz denied compensation on the grounds that Petitioner had not established by preponderant evidence that the vaccine caused AH.’s injuries.

In her motion for review, Petitioner asserts that the Special Master’s decision should be reversed because he improperly weighed the evidence and misapplied the relevant legal standards. Because the Court finds that the Special Master’s factual findings are supported by substantial evidence and that he correctly applied the relevant legal standards, Petitioner’s Motion for Review is denied.

I. Background

The facts upon which the experts and the Special Master relied are derived from three independent sources, plus an October 15, 2010 fact hearing. Because the various sources of evidence are inconsistent at times, this opinion will follow the Special Master’s lead in summarizing the facts described in, and differences between, the various parts of the record, including the testimony of the Petitioner’s and Respondent’s experts, Drs. Ronald I. Jacobson and Max Wiznitzer, respectively. The Special Master’s conclusions as to disputed facts are included in the facts, where appropriate.

A. Medical Records

A.H. was born on * * *, 2005. Prior to the vaccination at issue, AH.’s newborn check-ups were normal. However, Petitioner frequently contacted AH.’s pediatrician to inquire as to whether AH.’s frequent and prolonged episodes of crying and fussiness were normal. For example, the Special Master cited one instance in the records - prior to A.H.’s immunizations - that noted that “mom needs lots of assurance! Feels she’s a ‘bad mom’ as A.H. has so many issues!” Decision at 4. On October 21, 2005, Petitioner called the pediatrician and reported that A.H. had been crying off and on for eighteen hours. A note on the same page indicates that A.H. cried for four hours, followed by sleep for five hours. Id. The Record is replete with references to calls placed by the Petitioner throughout October and November. See id. (referencing calls on October 3, 21 and 25, and November 9,16,17,18, 22 and [215]*21523). In each instance, excessive crying was reported.

On December 1, 2005, A.H. had her two month well-child visit. Concerns were expressed over A.H.’s sleeping and diarrhea, but the examination was normal in other respects. It was during this visit that A.H. received the vaccinations at issue: Pediarix (a combination vaccine including DTaP, IPV polio, and hepatitis B), hemophilus influenza type b, and pneumococcal conjugate. Id. The relevant events in this matter occurred over the next four weeks. These events are the subject of some dispute.

Later on December 1, the day of the vaccinations, Petitioner called the pediatrician’s office “in a panic,” indicating that A.H. had slept for four hours following the vaccinations and had become increasingly irritable since awakening. This call was followed by an episode on December 2, 2005. During the episode, Petitioner was evidently driving A.H., who was “crying really hard in her car seat.” Petitioner reported that A.H. was making a strange face and “shaking her head a little bit.” Petitioner pulled over and checked on A.H., who reportedly had a blank look on her face. Petitioner “touched [A.H.’s] face and she was okay again.” The doctor’s notes indicate that the pediatrician believed the strange face was “that catching breath from crying so hard look.” Id.

Petitioner contacted the pediatrician’s office several more times after these initial postvaccination calls. On December 12, 2005, Petitioner contacted the pediatrician to report that A.H.’s left eye was wandering and sticking. On December 15, she called to report fussiness. Finally, on December 19, 2005, Petitioner took A.H. to see the pediatrician to address concerns that A.H. “cries all the time,” but she did not report any other symptom or sign of illness. Upon exam, A.H. was found to be “fussy, engaging and active.” Id.

On December 28, 2005 - more than a week after the latest episode - A.H. was admitted to the emergency room (“ER”) of Porter Hospital. The “Chief Complaint” was “lethargy.” It was noted in the history that A.H. was in “her usual state of health until this morning.” Under “Past Medical History,” it was noted that “[tjhere has not been any problems as far as mother can recall.” Petitioner reported that, prior to A.H.’s admission to the ER, she was not breast feeding well and she had vomited four times within the hour prior to admission. Other reported symptoms included holding her body stiffly and intermittent sleepiness. The examination notes indicate that A.H. had poor muscle tone. Id. at 5.

A.H. was then transferred to the Fletcher Allen Health Care Hospital (“FAHC”). The admission notes at FAHC indicate that A.H. was not acting out of the ordinary until “right before noon,” when she became fussy and began “screaming so loud we had to leave the restaurant.” Outside the restaurant, A.H. vomited, choked, and turned white. No shaking was reported. Petitioner described a similar episode about two weeks prior, during which A.H. looked “odd and was shaking her head back and forth.” Id. This is presumably a reference to the December 2 incident.

On the third day of her admission, December 30, 2005, she was witnessed having a seizure which included a sudden cessation of crying, left head and eye deviation, drooling, staring, and flexed and rhythmic shaking lasting about two minutes. An electroencephalography (“EEG”) showed clinical and subclinical seizure activity. The assessment was “a right basal ganglia hemorrhage, and hemorrhage in the deep white matter of the right frontal lobe.” Id.

Following the assessment, A.H. was transferred to the pediatric intensive care unit (“PICU”), where she was treated for her seizures. After her treatment, no further seizure activity was observed and A.H.’s health continued to improve throughout the remainder of her hospital stay. A.H. was discharged on January 10, 2006, with instructions to avoid pertussis vaccination. Id. at 6.

On January 11, 2006, A.H. saw her pediatrician for a follow-up appointment. On January 12, A.H. was noted as having a fifty-second seizure witnessed by a home health aide. This was her first seizure since the December 30 episode. An overnight EEG was negative for seizures. A.H. was referred [216]*216to a neurologist, Dr. Kalsner. The diagnosis of hemorrhage in the right basal ganglia was confirmed, and the most typical causes were noted as being a venous angioma or an arter-iovenous malformation (“AVM”). The Petitioner provided Dr. Kalsner with several typewritten sheets detailing the medical events, and these sheets were allegedly placed into the medical record. It does not appear, however, that the typewritten sheets were included in the medical records. Id.

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107 Fed. Cl. 212, 2012 U.S. Claims LEXIS 1500, 2012 WL 5990378, Counsel Stack Legal Research, https://law.counselstack.com/opinion/vaughan-ex-rel-a-h-v-united-states-uscfc-2012.