K.G. v. Sec'y of Health & Human Servs.

• Decision Date: 06 March 2019
• Docket Number: No. 18-120V,18-120V
• Citation: K.G. v. Sec'y of Health & Human Servs., No. 18-120V (Fed. Cl. Mar 06, 2019)
• Parties: K.G., Petitioner, v. SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent.
• Court: U.S. Claims Court

K.G., Petitioner, v. SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent.

No. 18-120V

United States Court of Federal Claims

March 6, 2019¹

National Childhood Vaccination Injury Act of 1986, 42 U.S.C. §§ 300aa-1 et seq.; Statute of Limitations; Equitable Tolling; Mental Incapacity; Savings Clause; Appointment of Legal Guardian.

Zachary James Hermsen, Whitfield & Eddy Law, 699 Walnut Street, Suite 2000, Des Moines, IA 50309, for Petitioner.

Joseph H. Hunt, C. Salvatore D'Alessio, Catharine E. Reeves, Heather L. Pearlman, and Voris Edward Johnson, U. S. Department of Justice, Torts Branch, Civil Division, P.O. Box 146, Benjamin Franklin Station, Washington, DC 20044-0146, for Respondent.

OPINION AND ORDER

WILLIAMS, Senior Judge.

This Vaccine Act case presents a novel issue of statutory interpretation: whether the statute of limitations may be tolled during the timeframe when a petitioner who lacks mental capacity, has a legal guardian. The Special Master determined that there was no basis to toll the statute of limitations, finding that while Petitioner herself may have been unable to file suit, Petitioner's guardian had the capacity to sue on her behalf. This Court sustains the Special Master's decision.

Background²

On October 12, 2011, Petitioner, a 48-year old woman, received the flu vaccine in preparation for a knee replacement at Mercy Medical Clinic in Johnston, Iowa. After the surgery on November 21, 2011, Petitioner reported tingling sensations in her toes as well as pain, which her medical providers attributed to the recent procedure. Dec. *3-4. In December 2011, Petitioner's primary physician observed no other symptoms, but in the months following, Petitioner reported "decreased sensations" in her lower extremities, instability in her left knee and difficulty walking. Dec. *5. In February 2012, Petitioner's physician ordered an electromyography test (EMG) to "rule out something like a neuropathy or some other sort of nerve injury . . . ." Dec. *6. The EMG was performed on May 7, 2012, and produced abnormal findings of "prolonged distal latency" in her left tibial nerves. Id. (citing Ex. 16, at 39).

In mid-May, after reporting hypersensitivity and lack of sensation at the bottom of both feet, burning sensations in her legs, and abnormal sensations in her fingers, Petitioner was referred to a neurology specialist, whose findings suggested a possible "peripheral nerve disease." Dec. *6-7 (citing Ex. 7F, at 3232). Over the summer of 2012, these symptoms worsened, and others appeared - slurred speech and depression as well as impaired judgment due to "the enormous amounts of alcohol and prescription medications she was consuming." Pet'r's Mot. 5; Ex. 2, at 118, 132, 169.

On November 9, 2012, Petitioner fell in her home and was transported to the hospital. Ex. 2, at 113. Records of her commitment indicate that Petitioner was unable to speak and was hallucinating, which required her providers to use wrist restraints, a ventilator, and a feeding tube. At discharge on January 11, 2013, Petitioner's diagnosis included Chronic Inflammatory Demyelinating Polyneuropathy ("CIDP"). Upon returning home, Petitioner continued to struggle with substance abuse, and while Petitioner's mental health generally deteriorated over the next four months, the record of a February 11, 2013 follow-up appointment with her neurologist noted that Petitioner was alert and that her "[j]udgment and insight were intact and appropriate." Ex. 18, at 61-62.

On May 26, 2013, Petitioner was again hospitalized after being found unconscious on the floor of her home. On June 21, 2013, she was transferred to an in-patient facility, where she remained against her will and "under constant medical supervision for the next three and a half years, during which time she continued exhibiting significant mental incapacity." Pet'r's Mot. 8. In the Fall of 2013, Petitioner was diagnosed with Korsakoff's Amnesia, "a syndrome of anterograde and retrograde amnesia with confabulation associated with alcoholic or nonalcoholic polyneuritis." Dec. *11 & n.5.

On July 17, 2013, shortly after Petitioner moved into the in-patient facility, Petitioner's sister was granted a power of attorney over Petitioner's health care decisions by an Iowa state court. Ex. 3, at 780-83. On March 24, 2014, with the entire family's agreement, Petitioner's sister was appointed her guardian and conservator by the Iowa District Court for Poweshiek County.Dec. *11; Ex. 4, at 16-17; Ex. 21 ¶ 23; Ex. 22 ¶ 10; Ex. 23 ¶ 12. According to the "Notice of Your Rights" given to Petitioner when her sister became her guardian and conservator, these designations gave Petitioner's sister the authority to make decisions with respect to Petitioner's physical wellbeing and otherwise and "to sue and defend any claim by or against [Petitioner] . . . ." Ex. 4, at 17, 3. The order granting guardianship and conservatorship to Petitioner's sister stated that there was "clear and convincing evidence and good cause for the appointment of a guardian and conservator of the proposed ward, all without limitations." Ex. 4, at 16.

During assessments at the in-patient facility, Petitioner consistently blamed her sister "for all her problems and sadness," for making "[her] room [her] prison," and for telling her sons that "she [had] brain problems from drinking so much." Ex. 13D, at 1398; Ex. 17, at 4, 10, 21. Petitioner's sister testified in her declaration that her appointment as guardian caused a strain on their relationship that ultimately caused her to stop "acting as [Petitioner's] guardian and conservator [because it] became too much . . . to personally handle." Ex. 21 ¶ 24. Nevertheless, Petitioner's sister continued to act as her guardian and conservator. See also, Ex. 4, at 134-36; 139-42. In an assessment on May 10, 2016, Petitioner "finally showed medical evidence of cognitive improvement." Pet'r's Mot. 11. On August 29, 2016, the Iowa District Court terminated Petitioner's sister's guardianship and conservatorship, and by November 2016, Petitioner had returned home.

Procedural History

On January 24, 2018, Petitioner, who no longer had a guardian, filed a claim for compensation under the National Vaccine Injury Compensation Program, alleging that she developed Guillain-Barre Syndrome ("GBS") and/or Chronic Inflammatory Demyelinating Polyneuropathy ("CIDP") as a result of the influenza vaccine she received on October 12, 2011. Petitioner admitted that her claim, filed more than six years after onset of her symptoms, was untimely under the Vaccine Act's three-year statute of limitations. However, Petitioner argued that because she was mentally incapacitated from November 9, 2012, to May 10, 2016, the statute of limitations should have been equitably tolled for that time period - some three and one-half years.

The Special Master determined that the statute of limitations began to run "no later than February 2012," when Petitioner first experienced leg numbness, a symptom consistent with CIDP, a slowly progressive autoimmune disease. Dec. *23 ("Thus, all things being equal, this case should have been filed by mid-February 2015 . . . ."); see Dorland's at 1491. The Special Master further determined that Petitioner was "sufficiently mentally impaired so as to stop the running of the limitations period" on May 26, 2013, when Petitioner was hospitalized after being found unresponsive at home. Dec. *24-25. The Special Master rejected Petitioner's argument that she became mentally incapacitated on November 9, 2012, finding that, while Petitioner's mental health was a concern by that date, her release from the hospital and positive mental health assessment at the February 2013 follow-up appointment demonstrated that her mental health had not yet declined to the point where she was fully incapacitated. Id.

The Special Master then determined that the limitations period resumed on March 24, 2014, when an Iowa state court appointed Petitioner's sister as her legal guardian and conservator, because these appointments gave Petitioner's sister the authority "'to sue and defend any claim by or against [Petitioner] . . . .'" Dec. *26 (quoting Ex. 4, at 3). The Special Master cited the "Noticeof Your Rights" Petitioner received and relied upon language in that Notice that mirrored Iowa Code § 633.646, the statute setting forth the powers of a conservator. This Iowa Code provision stated that "[the] conservator shall have the full power, without prior order of the court, with relation to the estate of the ward . . . to sue on and defend claims in favor of, or against, the ward or the conservator." Iowa Code § 633.646 (2018). The Special Master determined that, despite Petitioner's continued mental incapacity, tolling was no longer appropriate once her guardian was appointed, because she "did have a legal representative for a substantial period," who "had full authority to bring a legal claim on her behalf." Dec. *28. The Special Master concluded that the petition filed on January 24, 2018, was untimely, as the three-year statute of limitations expired in December 2015, even tolling for the period from May 26, 2013 until March 24, 2014, when Petitioner was mentally incapacitated without a guardian. Id.³

In her Motion for Review, Petitioner argues that the statute of limitations should be tolled for the entire period that she was mentally incapacitated - - even when she had a guardian - - and that the Special Master erred by restarting the limitations clock when Petitioner's sister became her court-appointed legal guardian. Petitioner submits that, even if tolling generally ends once a guardian is appointed, tolling should nevertheless continue in this case, because Petitioner's guardian could not effectively communicate with Petitioner or "identify the need to file a Vaccine Act claim . . . ." Pet'r's Mot. 20. Petitioner cites Petitioner's "severe psychological decline, including impaired memory, impaired logical reasoning abilities,...