Cook v. CHILDREN'S MEDICAL GROUP, PA
| Decision Date | 09 December 1999 |
| Docket Number | No. 1999-CA-00225-SCT.,1999-CA-00225-SCT. |
| Citation | 756 So.2d 734 |
| Parties | Ernest Alan COOK, Sr., and Kathleen Shorkey Cook, Individually, and on Behalf of Their Minor Son, Ernest Alan Cook, Sr. v. CHILDREN'S MEDICAL GROUP, P. A., Noel Womack, M.D., Lisa Stone, M.D., William Smith, M.D., and Parker Ellison, M.D. |
| Court | Mississippi Supreme Court |
S.T. Rayburn, Oxford, Ronald Henry Pierce, Pearl, Attorneys for Appellants.
Mildred M. Morris, Frank A. Wood, Jr., Jackson, Attorneys for Appellees.
BEFORE PITTMAN, P.J., SMITH AND MILLS, JJ.
STATEMENT OF THE CASE
¶ 1. This is an appeal from a dismissal with prejudice by the Circuit Court of Hinds County, Mississippi. A complaint alleging negligent or intentional fraudulent misrepresentation was filed in the Hinds County Circuit Court by Ernest Alan Cook, Sr. and Kathleen Shorkey Cook (hereinafter "Cooks"), individually and on behalf of their minor son, Ernest Alan Cook, Jr. (hereinafter "Ernie"), against Children's Medical Group, Dr. Noel Womack, Dr. Lisa Stone, Dr. William Smith and Dr. Parker Ellison (hereinafter referred to collectively as "CMG") on February 13, 1998.
¶ 2. On June 18, 1998, CMG filed a motion for summary judgment under Miss. R. Civ. P. 56(c). The circuit court judge considered CMG's motion as a "hybrid motion" allowing for review under Miss. R. Civ. P. 12(b)(6) or Miss. R. Civ. P. 56. The circuit judge decided that under either or both standards the case should be dismissed with prejudice and ruled accordingly on CMG's motion. The opinion, order and final judgment were entered on November 13, 1998. On December 8, 1998, this appeal was timely noticed.
¶ 3. CMG filed a motion for summary judgment on June 18, 1998. CMG denied none of the facts alleged in the plaintiff's complaint, arguing that even if everything the plaintiffs asserted was true, summary judgment should still be granted because plaintiffs failed to comply with the National Childhood Injury Compensation Act of 1986 (hereinafter "the Act"). The circuit court judge noted that this motion resembled a Rule 12(b)(6) and Rule 56 motion, but commented that both parties treated the motion as one for summary judgment under Rule 56. The judge analyzed the motion under both Rule 12(b)(6) and Rule 56 standards, determining that under either standard the case should be dismissed with prejudice. The standard for each Rule is similar in that the non-moving party is favored in the review of the facts. Based on the complaint and the motion for summary judgment the following facts are undisputed:
¶ 4. Ernie Cook, the minor son of Ernest and Kathleen Cook, was born without complications on February 14, 1990. Kathleen had appropriately adhered to prenatal care and all checkups showed Ernie to be of normal development. After Ernie's birth, pediatric care began on March 1, 1990, at the Children's Medical Group (CMG) under the care of Dr. Womack. Ernie was in good health at this time and received his # 1 DPT1 and OPV vaccinations on April 13, 1990, at the age of two months.
¶ 5. At the age of four months, Ernie received his # 2 DPT and OPV at Dr. Womack's office on June 11, 1990. Prior to this round of vaccination, Ernie had been a normally developing child. Within hours after this second round, however, Ernie screamed and cried for hours, developed a high fever, experienced periods of trembling, coma-like states of unresponsiveness and refused to take sustenance. The injection site was swollen. He was taken to CMG the day after the vaccination, and the Cooks were told by the attending doctor that nothing was wrong. Tylenol was prescribed to reduce Ernie's fever. After the June 11, 1990, vaccination, Ernie's behavior changed as he began to exhibit signs which have now been recognized as autistic-like symptoms. For seven years, however, the Cooks continued to express concerns to CMG about Ernie's behavior. Each time the Cooks were assured that Ernie's behavior was perfectly normal and that his symptoms in no way indicated any abnormality. The Cooks were repeatedly told that their concerns were unfounded. During this seven year period, Ernie was treated by Doctors Womack, Smith, Stone and Ellison, each with CMG.
¶ 6. Later, Kathleen Cook watched a television program which discussed a connection between autistic-like symptoms and reactions to vaccinations. Prior to this time the Cooks had never been informed of a possible connection between reactions to vaccinations and child developmental disorders. Mrs. Cook promptly requested Ernie's medical records from CMG and examined them.
¶ 7. On one of the pages which referred to an office visit on February 4, 1993, Mrs. Cook observed the notation "no pertussis." Mrs. Cook did not understand the notation because she had been informed that Ernie had always received the DPT vaccination. Continuing to examine Ernie's record, she noticed that on another page, in an allergy block, there appeared the notation "D-T only." Mrs. Cook then called Dr. Ellison's nurse and inquired as to what "no pertussis" meant. She was informed that it meant that Ernie had experienced an adverse reaction to pertussis.
¶ 8. Mrs. Cook began matching Ernie's shot cards with the vaccinations listed with dates on the medical records. It was then she noticed that some of the vaccination pages were missing from the records she was given, notably the pages containing entries for Ernies # 1 and # 2 DPT and OPV vaccinations (4/13/90 and 6/11/90). Mrs. Cook returned to CMG and obtained the missing pages. She then discovered that these pages documented that Ernie had experienced an adverse reaction to his # 2 DPT vaccination. In all subsequent vaccinations, CMG removed the pertussis from Ernie's vaccine protocol, administering only DT and OPV vaccinations. The Cooks were never informed of this change or of Ernie's reaction.
¶ 9. Later tests conducted at the University of Mississippi Medical Center led to a diagnosis that Ernie suffered developmental symptoms and traits similar to autism and Pervasive Development Disorder Not Otherwise Specified (PDDNOS), an autism spectrum disorder. Ernie does not have stereotypical autism. He has a normal IQ and is capable of some spontaneous speech. He does, however, have problems with attention, frustration and obsessive behavior and suffers from sensory difficulties in all five senses. Despite his normal IQ, Ernie is incapable of functioning normally in social settings. In addition to PDDNOS, Ernie has an expressive language disorder. It is unclear whether Ernie will ever be able to function at a normal level.
¶ 10. Ernie and his parents bring suit alleging intentional misrepresentation in breach of CMG's fiduciary duty to Ernie and his parents. In the motion for summary judgment, CMG contends that the parents filed suit only on Ernie's behalf and that they did not comply with the clear stipulations of the National Childhood Injury Compensation Act of 1986 (the Act).
¶ 11. The Act, 42 U.S.C. §§ 300aa-1, et seq., was created in response to the growing number of lawsuits stemming from vaccine-related injuries which resulted in large awards. Such lawsuits caused an increase in the cost of vaccinations and forced some manufacturers to cease production. Fearing a decline in the vaccination of children and the possibility of resulting epidemics, Congress passed the Act which established a "no-fault" compensation system for victims of vaccine-related injuries while simultaneously protecting vaccine manufacturers and administrators from crushing liability. See generally Schafer v. American Cyanamid Co., 20 F.3d 1 (1st Cir.1994)
. The trust established under the Act is funded by a tax on all vaccines. 42 U.S.C. § 300aa-15(f)(4)(A).
¶ 12. 42 U.S.C. § 300aa-11(a)(2)(A) states:
42 U.S.C. § 300aa-11(a)(2)(B) further states that: "If a civil action which is barred under subparagraph (A) is filed in a State or Federal court, the Court shall dismiss the action."
¶ 13. It is a fact that Ernie and his parents did not file a petition. They assert that due to the intentional fraudulent misrepresentation of CMG, the thirty-six month statute of repose ran, preventing them from filing suit. In their motion for summary judgment, CMG does not deny the Cooks' assertions, but relies upon the plain language of the above mentioned sections of the Act in seeking dismissal.
¶ 14. After considering the matter, the circuit judge determined that the Cooks filed suit only on behalf of Ernie and that his injury should have been petitioned as required by the Act. The judge then dismissed with prejudice the Cooks' case as barred under the plain language of 42 U.S.C. § 300aa-11(a)(2). The opinion, order and final judgment were entered on November 13, 1998.
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