D.V.M. v. HHS - DTaP, DTaP Table acute encephalopathy with brainstem hemorrhage, seizure, cranial nerve palsies, right hemiparesis, feeding difficulty, and global developmental delay (2019)

On March 11, 2013, Haytor Vega and Lucia Martinez, as legal representatives of their minor son D.V.M., filed a petition under the National Vaccine Injury Compensation Program. They alleged that D.V.M. suffered an acute encephalopathy within seventy-two hours of receiving a diphtheria-tetanus-acellular pertussis (DTaP) vaccine on March 12, 2010.

D.V.M. was born on January 12, 2010, and had normal Apgar scores and a normal well-child visit at three and a half weeks old. On March 12, 2010, at approximately fifty-nine days old, he received Prevnar, Hepatitis B, and Pentacel (which includes DTaP) vaccinations.

His parents reported that after the vaccinations, he became sleepy, did not appear to focus normally, and preferentially held his head to the right. Later that evening, he slept unusually, took less formula, and by 9:00 p.m., his parents observed him turning his head and fixing his gaze to the right.

During the night, he was noted to be stiff and moaning. Around 4:30 to 5:00 a.m. on March 13, 2010, his parents observed that his right eye would not open, the right side of his mouth drooped, his head resisted movement, his body was stiff, and he was moaning.

He was taken to Piedmont Hospital's emergency room around 6:00 a.m. on March 13, where he was found to be unresponsive, seizing, and gazing upward and to the right. A CT scan showed acute parenchymal, intraventricular, and subarachnoid blood, with a possible vascular anomaly or underlying brainstem lesion.

He was transferred to Scottish Rite Hospital, where he remained for eighteen days. The child-protection team evaluated him for non-accidental trauma but found no evidence of trauma.

Ophthalmology found no retinal hemorrhages. Subsequent MRIs and CT scans showed a hemorrhage in the region of the left ambient cistern and dorsal brainstem, but later imaging over several years did not identify a vascular malformation or lesion.

Diagnoses at discharge included intraventricular hemorrhage, left facial nerve palsy, left abducens nerve palsy, right hemiparesis, feeding difficulty, seizure, and unspecified anemia. D.V.M. continued to have global developmental delays.

Respondent's expert, Dr. Max Wiznitzer, conceded that D.V.M. suffered an encephalopathy meeting the Vaccine Table criteria but argued it was caused by an occult vascular malformation that was destroyed by the hemorrhage, thus falling under the Table exception for structural lesions.

He also opined the hemorrhage likely predated the vaccination and that the vaccine was only temporally associated. Petitioners' expert, Dr.

Marcel Kinsbourne, argued that serial imaging never revealed a structural lesion, that spontaneous infant hemorrhages can be unexplained, and that the onset of neurological signs approximately ten hours after vaccination was consistent with pertussis-vaccine encephalopathy. On April 21, 2017, Chief Special Master Nora Beth Dorsey ruled that D.V.M. was entitled to compensation, finding that the Table criteria were met and that respondent had not proven a structural lesion or other unrelated cause by a preponderance of the evidence.

Damages were resolved by proffer after Robert Ruppenthal was appointed conservator of D.V.M.'s estate. On June 4, 2019, Chief Special Master Dorsey awarded a total of $467,247.08, including $250,000.00 for pain and suffering, $168,506.00 for first-year life-care expenses and partial expenses for 2051 payable to Counsel Trust Company for the D.V.M.

Reversionary Trust, $48,741.08 for the past State of Georgia Medicaid lien payable to the Georgia Department of Community Health, and amounts sufficient to purchase two annuity contracts. Petitioner was represented by Howard S.

Gold of Gold Law Firm, LLC.