Klahn v. HHS - IPV/Polio, community-contact poliomyelitis / paralytic polio (1994)

The Klahn case was an oral polio vaccine community-contact claim. Petitioner was an immune-deficient individual whose personal physician also served as pediatrician for petitioner's daughter.

On June 1, 1988, the physician recommended standard infant vaccinations for the daughter, including oral polio vaccine (OPV), and referred them to Public Health Services of Jackson County, Wisconsin. On June 14, 1988, a Public Health Services nurse administered OPV to the daughter.

Petitioner began experiencing paraparesis on August 17, 1988. Petitioner filed a Vaccine Program petition on September 11, 1990.

The petition stated that she had never received an award or settlement for her paralytic polio and that no prior civil action had been commenced relating to the vaccination. Based on that petition and the accompanying medical records, respondent conceded on February 8, 1991 that petitioner satisfied the criteria for presumptively vaccine-related poliomyelitis or paralytic polio and that there was not a preponderance of evidence that her condition was due to factors unrelated to administration of OPV to her daughter.

The later dispute was jurisdictional, not medical. While compensation proceedings were pending, petitioner, her husband, and her daughter filed a Wisconsin civil action on September 25, 1991 against the referring physician, the physician's employer, insurers, the Wisconsin Department of Health and Social Services, and related entities.

Respondent moved to dismiss the Vaccine Program petition, arguing that the civil action barred the claim under the Vaccine Act's gatekeeping provisions. Petitioner and her family dismissed the Wisconsin civil action on June 22, 1993 before any judgment or settlement.

The special master denied respondent's motion to dismiss and awarded compensation. The special master concluded that the later Wisconsin action did not divest the Vaccine Program of jurisdiction because it was filed after petitioner had already entered the compensation system and because it was not filed against the vaccine manufacturer or the actual administrator of the vaccine.

The special master also held that the referring physician was not the vaccine "administrator" for Program purposes; the Public Health Services nurse had actually administered the OPV. Senior Judge Kenneth R.

Harkins affirmed on May 24, 1994. The court held that the special master's interpretation of the Vaccine Act was not arbitrary, capricious, an abuse of discretion, or otherwise contrary to law.

The decision sustained the special master's compensation award, although the staged order does not state the amount or damages breakdown.