Broekelschen v. Sec'y Of Health And Human Serv.

• Decision Date: 08 December 2010
• Docket Number: No. 2009-5132.,2009-5132.
• Citation: 618 F.3d 1339
• Parties: Peter BROEKELSCHEN, M.D., Petitioner-Appellantv.SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent-Appellee.
• Court: U.S. Court of Appeals — Federal Circuit

618 F.3d 1339

Peter BROEKELSCHEN, M.D., Petitioner-Appellantv.SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent-Appellee.

No. 2009-5132.

United States Court of Appeals Federal Circuit.

Sept. 10, 2010.

Rehearing En Banc Denied Dec. 8, 2010.

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Lisa A. Roquemore, Broker & Associates, PC, of Irvine, CA, argued for petitioner-appellant.

Voris E. Johnson, Jr., Trial Attorney, Torts Branch, Civil Division, United States Department of Justice, of Washington, DC, argued for respondent-appellee. With him on the brief were Tony West, Assistant Attorney General, Timothy P. Garren, Director, Mark W. Rogers, Deputy Director, and Catharine E. Reeves, Assistant Director.

Before GAJARSA, MAYER, and PLAGER, Circuit Judges.

Opinion for the court filed by Circuit Judge GAJARSA.

Dissenting Opinion filed by Circuit Judge MAYER.

GAJARSA, Circuit Judge.

Peter Broekelschen, M.D., appeals the decision of the United States Court of Federal Claims affirming a special master's decision denying Dr. Broekelschen's petition for compensation under the National Childhood Vaccine Injury Act of 1986 (“Vaccine Act”), 42 U.S.C. §§ 300aa-1 to -34 (2006). The special master concluded that Dr. Broekelschen did not prove by a preponderance of the evidence that the flu vaccine caused his injury. See Broekelschen v. Sec'y of Health & Human Servs., 89 Fed.Cl. 336 (2009). Because the Court of Federal Claims correctly concluded that the special master's decision was not arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law, we affirm.

Background

I.

A petitioner seeking compensation under the Vaccine Act must prove by a preponderance of the evidence that the injury or death at issue was caused by a vaccine. 42 U.S.C. §§ 300aa-11(c)(1), -13(a)(1). A petitioner can show causation under the Vaccine Act in one of two ways. Either the petitioner can prove causation by showing that she sustained an injury in association with a vaccine listed in the Vaccine Injury Table (“Table injury”). Id. § 300aa-11(c)(1)(C)(i). In such a case, causation is presumed. Andreu v. Sec'y of Health & Human Servs., 569 F.3d 1367, 1374 (Fed.Cir.2009). Or, if the complained-of injury is not listed in the Vaccine Injury Table (“off-Table injury”), the petitioner may seek compensation by proving causation in fact. Moberly v. Sec'y of Health & Human Servs., 592 F.3d 1315, 1321 (Fed.Cir.2010); see also 42 U.S.C. § 300aa-11(c)(1)(C)(ii). Once the petitioner has demonstrated causation, she is entitled to compensation unless the government can show by a preponderance of the evidence that the injury is due to factors unrelated to the vaccine. Doe v. Sec'y of Health & Human Servs., 601 F.3d 1349, 1351 (Fed.Cir.2010); see also 42 U.S.C. § 300aa-13(a)(1)(B).

II.

On October 28, 2005, Dr. Broekelschen received a flu vaccine. At the time he received the flu vaccine, Dr. Broekelschen was sixty-three years old and was in excellent health. He had an active medical practice in gastroenterology working about sixty hours a week. In addition, Dr. Broekelschen enjoyed an active lifestyle spending most weekends jogging, bicycling, swimming, kayaking, or skiing.

On December 16, 2005, while at work, Dr. Broekelschen developed crushing pain in his chest that spread to his arms, fingers, neck, and around his left scapula. Dr. Broekelschen was transported by ambulance to Hoag Memorial Hospital Presbyterian and admitted that same day. Doctors first performed multiple electrocardiograms (“EKGs”) to test Dr. Broekelschen's heart activity, which appeared normal, thus ruling out a heart attack. Doctors then performed Magnetic Resonance Imaging (“MRI”) revealing degenerative changes in the cervical spine. Additional MRIs revealed two lesions, one in the cervical spine (C2-C3 level) and one in the thoracic spine (T2 level). Doctors also performed an angiogram revealing an occlusion of the anterior spinal artery at the C2-C3 level. While Dr. Broekelschen was hospitalized, he required an emergency bladder catheterization due to paralysis in his bladder and bowels. Doctors took a cerebrospinal fluid sample that revealed normal levels of Immunoglobulin G (“IgG”), one white blood cell, and an elevated protein count. According to Dr. Jacob P. Verghese, the doctor who discharged Dr. Broekelschen, Dr. Broekelschen's proprioception was unaffected. Proprioception is the ability to sense the position, location, orientation, and movement of one's body and its parts. But Dr. Broekelschen testified that a neurologist visited him while he was hospitalized and concluded that Dr. Broekelschen's proprioception was abnormal.

While Dr. Broekelschen was hospitalized, the differential diagnoses included anterior spinal artery syndrome or transverse myelitis, possibly due to the flu vaccine. Anterior spinal artery syndrome is a vascular event caused by an occlusion or blockage in the anterior spinal artery, reducing blood flow, that disrupts neurological activity only on the anterior side of the spinal column. Transverse myelitis is a neurological disorder caused by an abnormal immune response resulting in inflammation across both sides of one level of the spinal cord that interrupts communications between the nerves in the spinal cord and the rest of the body. Ultimately, Dr. Verghese concluded in a discharge summary that Dr. Broekelschen suffered from cervical myelopathy, etiology unknown. Cervical myelopathy is a general term referring to dysfunction of the spinal cord caused by one of many diseases including anterior spinal artery syndrome and transverse myelitis.

More than three months after Dr. Broekelschen was hospitalized, he was examined by various doctors in an effort to determine the proper diagnosis. Dr. Stanley vanden Noort, a neurologist, and Dr. John C. Storch, Dr. Broekelschen's primary care physician, both examined Dr. Broekelschen and concluded that he suffered from transverse myelitis secondary to the flu vaccine. However, Dr. Storch wrote “there is no test available to prove this” and his conclusion was made “in the absence of another working diagnosis.” J.A. 119. Dr. vanden Noort observed that Dr. Broekelschen's proprioception was affected in his left foot and simply stated that “[o]ur neuroradiologists concur with the report of transverse myelitis.” J.A. 117. Dr. vanden Noort, however, concluded that “[i]t is not necessary to pursue alternative diagnoses because [Dr. Broekelschen] is improving slowly.” Id.

Despite Dr. vanden Noort and Dr. Storch's conclusions, Dr. Broekelschen presented symptoms that are characteristic of both anterior spinal artery syndrome, a vascular condition, and transverse myelitis, an inflammatory response. Both injuries can cause severe neck or lower back pain and paralysis of the bladder, bowels, and extremities. One distinguishing symptom, however, is that proprioception is affected in transverse myelitis, but not in anterior spinal artery syndrome. In addition, if a patient suffers from transverse myelitis, doctors would typically observe elevated levels of white blood cells and IgG in the cerebrospinal fluid because transverse myelitis is often caused by an immune response. On the other hand, if a patient suffered from anterior spinal artery syndrome, an angiogram, which is a visualization of blood flow, would evidence an occlusion in the anterior spinal artery.

III.

Dr. Broekelschen filed a petition in the Court of Federal Claims seeking compensation under the Vaccine Act alleging that the flu vaccine caused him to suffer transverse myelitis. See Broekelschen v. Sec'y of Health & Human Servs., No. 07-137V, 2009 WL 440624, 2009 U.S. Claims LEXIS 137 (Fed.Cl. Feb. 4, 2009) (special master's published decision denying entitlement). The case was assigned to a special master from the Court of Federal Claims. Because transverse myelitis is an off-Table injury, Dr. Broekelschen was required to prove causation in fact. See 42 U.S.C. § 300aa-11(c)(1)(C)(ii).

Both parties retained well-qualified experts, who submitted reports and testified at a hearing held by the special master regarding whether the flu vaccine caused Dr. Broekelschen's injury. Dr. Lawrence Steinman, Dr. Broekelschen's expert, is a Board Certified Neurologist, a Professor of Neurology and Pediatrics, and chair of the Program in Immunology at Stanford University. He has over thirty years of medical experience in neurology and has dealt with transverse myelitis as a result of vaccinations several times a year as either a treating physician or in departmental conferences. Dr. Steinman has served on expert and advisory panels relating to vaccination matters as well as received various awards for research on the nervous system. He has also authored over 300 articles relating to how the immune system attacks the nervous system with about twenty articles directly dealing with vaccines. Dr. Steinman opined that the flu vaccine caused Dr. Broekelschen to suffer transverse myelitis.

Dr. Benjamin Greenberg, the government's expert, disagreed and opined that Dr. Broekelschen suffered from anterior spinal artery syndrome, which was not caused by the flu vaccine. At the time of the hearing, Dr. Greenberg was an assistant professor in the Department of Neurology at Johns Hopkins School of Medicine. Dr. Greenberg was also the co-director of the Johns Hopkins Transverse Myelitis Center, the only center in the world dedicated to transverse myelitis. As of July 2007, the Johns Hopkins Transverse Myelitis Center had seen over 1200 patients with spinal cord disease. Also, the Transverse Myelitis Center has done extensive research on the diagnosis, treatment, and long-term care of patients with transverse myelitis. As a result of his position, Dr. Greenberg worked with patients suffering from transverse myelitis on a daily basis.

On February 4, 2009, the special master published a detailed explanation for his decision denying Dr. Broekelschen entitlement under the Vaccine Act. Broekelschen, 2009...