Caron ex rel. & C. v. Sec'y of Health & Human Servs.

• Decision Date: 30 January 2018
• Docket Number: No. 15-777V,15-777V
• Parties: HEATHER CARON o/b/o and as next friend of A.C., a minor, Petitioner, v. SECRETARY OF HEALTH AND HUMAN SERVICES, Defendant.
• Court: U.S. Claims Court

HEATHER CARON o/b/o and as next friend of A.C., a minor, Petitioner, v. SECRETARY OF HEALTH AND HUMAN SERVICES, Defendant.

No. 15-777V

United States Court of Federal Claims

Reissued for Publication: March 19, 2018¹

January 30, 2018

Vaccine Act; DTaP, HIB, MMR and Varicella vaccinations; CRMO; Onset of Symptoms; Entitlement.

Verne E. Paradie, Jr., Paradie, Sherman, Walker & Worden, Lewiston, ME, for Petitioner.

Jennifer L. Reynaud, Trial Attorney, Torts Branch, Civil Division, United States Department of Justice, Washington, D.C., for Respondent. With her was Alexis B. Babcock, Assistant Director, Torts Branch, Civil Division, Catherine E. Reeves, Deputy Director, Torts Branch, Civil Division, C. Salvatore D'Alessio, Acting Director Torts Branch, and Chad A. Readler, Acting Assistant Attorney General, Civil Division.

OPINION

HORN, J.

On July 23, 2015, Petitioner Heather Caron, parent and next friend of minor, A.C., and on behalf of A.C., filed a timely petition for compensation with the National Vaccine Injury Compensation Program, under the National Childhood Vaccine Injury Act of 1986, 42 U.S.C. §§ 300aa-1-300aa-34 (2012) (Vaccine Act). On September 7, 2017, Special Master Mindy Michaels Roth of the United States Court of Federal Claims denied Petitioner's claim for an award of compensation, finding that Petitioner did not show by a preponderance of the evidence that she is entitled to compensation under the Vaccine Act. See Caron v. Sec'y of Health & Human Servs., No. 15-777, 2017 WL 4349189, at *10 (Spec. Mstr. Fed. Cl. Sept. 7, 2017). On September 26, 2017, Petitioner filed a motion for review in this court to review the Special Master's decision denying her claim, pursuantto Rule 23 of the Vaccine Rules of the United States Court of Federal Claims (Vaccine Rules) (2017). This case comes to the court upon that motion.

FINDINGS OF FACT

The following relevant facts are established by the exhibits of records submitted by Petitioner in this matter and the Special Master's factual findings from her December 14, 2016 Ruling On Onset and her September 7, 2017 Decision Denying Entitlement.² See Caron v. Sec'y of Health & Human Servs., 2017 WL 4349189, at *1-5; see also Caron v. Sec'y of Health & Human Servs., No. 15-777, 2016 WL 7664309, at *5-9 (Spec. Mstr. Fed. Cl. Dec. 14, 2016). According to the records before the court, A.C. was born on July 18, 2009, four weeks prematurely. Eleven days after birth, A.C. appeared "alert, well nourished, well hydrated, [and with] no acute distress," and by two months old, A.C. was healthy and well developing.

During his first three years of life, A.C. was seen at the pediatrician's office over forty times for a variety of complaints, such as ear infections, insect bites, congestion and coughing, and for standard well-child visits. According to the records before this court, prior to the visit on which A.C. received the vaccines at issue in the case before this court on August 2, 2012, A.C. received routine vaccines on a delayed schedule with no apparent adverse side-effects.

Among his numerous visits, when he was around ten weeks old, A.C. was admitted to Maine General Medical Center to "rule out sepsis or pneumonia or meningitis." When A.C. was around six months old, he was referred to a pediatric pulmonologist for multiple respiratory issues. On September 20, 2011, when A.C. was two years old, he was taken to the emergency room after falling forward and cutting his forehead with his toy train. Shortly after that visit, on November 8, 2011, Petitioner took A.C. to the emergency room for a cough and sinus congestion. The medical record notes that because Petitioner and A.C. were unable to see the primary care physician, she took A.C. to the emergency room instead. The medical record also states that "[t]he child himself does not have any complaints. He is quite active as I enter the room." On July 29, 2012, Petitioner took A.C. to the pediatrician's office because A.C. had multiple bug bites. The medical record states that "[m]om has outlined several because he seems to have some big reactions to them." There was "[n]o concern for infection," however, and A.C. did not have any fever.

On August 2, 2012, a couple of weeks after his third birthday, A.C. visited the pediatrician for a well-child visit. He was noted to be a "[w]ell appearing child, appropriate for age, [with] no acute distress." He was being home schooled and was behind in his immunizations. At this August 2, 2012 visit, A.C. received the allegedly causal diphtheria-tetanus-acellular pertussis (DTaP), haemophilus influenza type B (HIB), measles-mumps-rubella (MMR) and Varicella vaccinations.³

On December 4, 2012, approximately four months after A.C. received the August 2, 2012 vaccines at issue in this case, A.C. visited his pediatrician for complaints regarding his right ear. The medical record notes that his right ear was "closing," but that A.C. was acting well and had no fever and made no mention of foot pain. This was A.C.'s first medical visit after receiving his August 2, 2012 vaccines.

On January 16, 2013, A.C. visited the pediatrician's office to address foot pain. The medical record notes:

[Petitioner] concerned about [A.C.'s] R[ight] foot or ankle, seems to be favoring it, c/o [complaining of] pain; and when sitting/lying down keeps it flexed up, walking on it abnormally. no known injury[,] no bruising, no redness, no swelling. since last Thursday, about a week now[,] have tried ice, no other meds[.]

The pediatrician also noted: a "R[ight] foot in flexed position, toes up; walking mostly on medial edge of foot . . . no pain with movement, when distracted no tenderness but whenasked points to top of foot that hurts. no edema, no erythema, no ecchymosis[.]" A.C.'s foot was wrapped in an ace bandage and Petitioner was told to follow up as needed.

On January 19, 2013, Petitioner took A.C. to Mid Coast Hospital with "20 hours of fever up to 105." The medical record states that A.C. had been complaining of some head pain and nausea and that A.C. had experienced decreased appetite and activity, but also states that during his physical exam, A.C. was "alert, happy, smiling, interactive and playful, consolable, well hydrated, . . . appears pain free." Additionally, an examination of his joints and back were "normal"; A.C. "[m]ove[d] all extremities equally"; there were "no focal motor deficits" and A.C. had a "nml [normal] gait."

As reported in the medical records, A.C.'s joint pain increased and he was seen various times regarding this pain throughout March 2013. For example, the medical record indicates that A.C. had "neck pain when turning head fast . . . [and] not wanting to move [his] neck," and by March 26, 2013, A.C. "[o]ften times . . . complain[ed] of pain so much that he just [sat] on the couch and then put[] himself to bed."

On April 4, 2013, A.C. was admitted to the Barbara Bush Children's Hospital at the Maine Medical Center with symptoms of "headache, polyarthralgia, fever and weight loss." According to the medical record, A.C.'s "symptoms had been present for several months but had worsened in the past few week [sic] to the point where he could not stand." The medical record further notes:

The patient is a 3 y.o. male without a significant past medical history who presents with fever and joint pain. Mom reports that in January, he had right foot with limping. Seen by PCP [primary care physician] and xray looked fine. Treated with an ace bandage. Symptoms resolved within 1 week. Then in march, he complained of BL foot pain and left knee pain. Seen by ortho. More x rays no fracture. PCP referred to rheumatology. Last 5 week [sic], his pain has progressively worsened and he was staying up at night crying. Now, he is complaining of R butt or hip pain, R knee, feet, hand pain. Not wanting to pick up things with hands. No swelling or redness of joints. They feel warm to mom. Fever for the past 2 weeks, 99-101 almost every day. Worse at night. Past 3 days, his fever has been getting higher up to 103. Last night, mom took him to Midcoast ED [emergency department] for fever and neck pain. Not extending head to look up. Decreased ROM [range of motion] turning head. Not wanting to bear weight unless given pain medications.

During this hospital stay, A.C. underwent extensive testing, including a bone scan, a magnetic resonance imaging (MRI) of his neck, and bone biopsies from his mandible and tibia. On April 13, 2013, A.C. was discharged with an initial diagnosis of polyostotic fibrous dysplasia and hypophosphatemia.⁴

Other medical reports taken during A.C.'s April 2013 hospital stay reflect a similar history of foot pain beginning around January 2013. The pediatric oncologist noted, "[i]n January of 2013 c/o [complaining of] intermittent pain in foot. Pain self resolved. Pain reoccurred And seen by orthopedics." The resident pediatrics specialist noted that "[m]om reports that in January, he had right foot with limping. . . . Symptoms resolved within 1 week." The rheumatologist noted that, "[A.C.] is known to me. I saw him for the 1st time on 4/2 with 2-3 month h/o [history of] arthralgia localized to knees, left foot, and neck." The pediatric infectious disease consult noted that "[t]he history was obtained from mother. [A.C.] is a 3 y.o. male who presented yesterday with 3-4 months of joint pain and intermittent fevers. [A.C.] was in his typical state of health until mid January when he began to have pain of his right foot and ankle."

On April 29, 2013, A.C. had a follow-up visit with the rheumatologist, who noted that A.C.'s illness can "best be described as chronic recurrent multifocal osteomyelitis," although there was an initial belief that A.C. may have had fibrous dysplasia. The rheumatologist also noted that A.C.'s hypophosphatemia had since been corrected with medication. On June 10, 2013, the rheumatologist noted that the medical consensus regarding A.C.'s symptoms is a diagnosis of Chronic Recurrent...