Carol Hovey v. HHS - DPT/DTP, encephalopathy (1997)

On January 30, 1991, Spencer and Hortence Hovey, acting as guardians for their daughter Carol Hovey, filed a petition under the National Childhood Vaccine Injury Act. Carol, born on April 5, 1960, had records indicating normal growth and development in her first three months.

She received her first diphtheria-pertussis-tetanus/polio (DPT/P) vaccination on August 4, 1960, at the Tanner Clinic in Layton, Utah. The petition alleged that Carol received her second DPT/P vaccination on September 21, 1960, and subsequently developed a high fever, convulsions, and seizures within hours.

She was hospitalized for six weeks, diagnosed with post-measles encephalitis, and experienced an incomplete recovery characterized by poor speech, poor coordination and strength, and mental retardation. The petitioners' claim centered on the timing of this second vaccination and the onset of symptoms, alleging it occurred within the three-day window required by the Vaccine Injury Table for encephalopathy.

However, contemporaneous medical records presented conflicting information. A record from September 8, 1960, indicated that Carol's second immunization should be delayed by one week due to an upper respiratory infection and red ears.

Furthermore, a hospital case history prepared on September 21, 1960, the date of her first seizure, stated that the second immunization had been administered "1 week ago." The petitioners submitted later affidavits from parents and family friends, along with letters from two doctors written decades later, to support the September 21 vaccination date. However, they did not produce a vaccination record or other contemporaneous documentation confirming a DPT/P shot on that specific date.

The Special Master denied an evidentiary hearing and dismissed the petition, finding that the medical records indicated the vaccination occurred approximately one week before the September 21 seizure, placing it outside the three-day Table period for encephalopathy. Judge Moody R.

Tidwell III affirmed this decision on June 19, 1997. The court held that contemporaneous medical records were entitled to greater weight than later recollections and that the Special Master's reliance on these records was not arbitrary or capricious.

Because the petitioners pursued only a Table encephalopathy theory and failed to prove symptom onset within the required Table window, the claim was dismissed, and no compensation was awarded. The court noted that the petition did not pursue a claim under an actual causation theory before the Special Master.