Denial of Motion for Review – Infant Death post DTaP


Waterman v. HHS (Fed. Cl. Oct. 23, 2015) (Campbell-Smith, CJ)

Petitioners ultimately advanced a theory of a Table Encephalopathy following DTaP and Respondent filed a motion for ruling on the record.  The special master denied compensation, holding that there was no evidence the baby suffered from an encephalopathy or that the death was a sequela of such encephalopathy, thus could not be a Table injury.

The death certificate listed SIDS and the autopsy revealed no abnormal brain pathology.

The reviewing judge quoted the table definition of encephalopathy: “any significant acquired abnormality of, or injury to, or impairment of function of the brain.”  Moreover, the encephalopathy must be “acute,” to constitute a table injury, or “sufficiently severe so as to require hospitalization (whether or not hospitalization occurred).”

The special master had ruled that there was no table encephalopathy because there was no evidence of injury to the brain.  Furthermore, finding the baby in distress, having difficulty breathing, did not establish “unresponsiveness” within the meaning of the Table.  Finally, other symptoms in the record, feeding changes and sleepiness, are specifically identified in the Table as insufficient proof of encephalopathy.

More significantly, Petitioners’ expert, the treating physician, had neither diagnosed an encephalopathy nor suggested that one had taken place in the expert report.

The fact that death was preceded by a loss of consciousness is not unusual, and was not proof of an encephalopathy.  Specifically, it could not be equated with a “significantly decreased level of consciousness” under the Table definition.  If this were correct, then every death case would be a Table injury – the decreased level of consciousness must be separate from the dying process.

Thus, the special master’s ruling on encephalopathy was not an abuse of discretion.

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