Blake Aull v. HHS - death (2005)

Blake Aull, a minor, died on September 12, 2000, following vaccinations administered on September 8, 2000. His parents filed a petition for vaccine compensation under the National Childhood Vaccine Injury Act (NCVIA) on September 11, 2002, alleging that the immunization weakened his immune system, contributing to his death from pneumonia.

Simultaneously, they pursued a state court action against the administering physician, Dr. David E.

Danhauer, and Owensboro Pediatrics, PLLC, alleging negligence in diagnosing and treating Blake's pneumonia after the vaccination. The state court complaint detailed a series of alleged negligent acts by Dr.

Danhauer and Owensboro Pediatrics, including failure to timely recognize or treat pneumonia, failure to diagnose pneumonia and prescribe antibiotics, failure to admit Blake to the hospital, failure to act upon blood tests and laboratory results in a timely manner, failure to inform the parents of test results, failure to administer a blood transfusion in a timely manner, and failure to respond to Blake's special medical needs. The petition filed in the NCVIA program alleged that Blake received the immunization on September 8, 2000, developed a high fever within two hours, and experienced shortness of breath on September 11, 2000, ultimately succumbing to his illness on September 12, 2000.

During oral argument, petitioners' counsel stated that the negligence alleged in the state case occurred on September 11, 2000, when the child presented to Dr. Danhauer's office, and that Dr.

Danhauer failed to review hospital reports indicating pneumonia, did not diagnose pneumonia, and prescribed the wrong medication. Counsel also stated that the September 8, 2000, immunization weakened the child's immune system, making him more susceptible to pneumonia.

The Special Master dismissed the NCVIA petition, concluding that the pending state court action for wrongful death barred the proceeding. The Court of Federal Claims, while disagreeing with the Special Master's reasoning regarding the interpretation of the Act's provisions, affirmed the dismissal on other grounds.

The court held that claims alleging negligence related to the physical effects of the vaccine, even if occurring after administration, must first be brought under the NCVIA. The court reasoned that the state court action, which alleged post-vaccination negligence in treating the effects of the vaccine (aggravation of a pre-existing encephalopathy due to the vaccine), was a "vaccine-related death" claim that barred the NCVIA petition under 42 U.S.C. § 300aa-11(a)(5)(B).

The court noted that if the state action is dismissed, the petitioners may refile their NCVIA petition within one year due to tolling provisions. The petition was dismissed without prejudice.

The public decision does not describe the specific vaccines administered, the child's age at vaccination, the specific clinical findings, diagnostic tests performed, or treatments rendered beyond the allegations of negligence. No experts were named in the public decision.