Nicholas Song v. HHS - DTP, residual seizure disorder and encephalopathy (1994)

On April 16, 1992, Suk Soon Song filed a petition under the National Childhood Vaccine Injury Act of 1986 on behalf of her son, Nicholas Song, who was born on December 23, 1988. Nicholas experienced an uneventful pregnancy and delivery, and developed normally except for noted hypotonia until he received his second DTP vaccination on April 26, 1989, at approximately four months of age.

Following the vaccination, Nicholas developed a slight fever. Two days later, on April 28, 1989, he appeared to have two seizures and was taken to Staten Island Hospital.

While hospitalized, he experienced two more seizures on May 2, 1989. Examinations after these seizures indicated he was alert.

Tests including EEG, CAT scan, and MRI yielded normal results. Nicholas was placed on anticonvulsive medication and discharged in good condition on May 17, 1989.

The petition alleged that Nicholas suffered a presumptively vaccine-related residual seizure disorder, and that subsequent learning disability, expressive language delay, and hypotonia were residual effects of this vaccine injury. However, medical records indicated that by September 13, 1989, approximately five months post-vaccination, Dr.

Testa found Nicholas attentive, sitting unassisted, smiling, and saying "mama" and "dada," concluding he had met appropriate developmental milestones. Petitioner's expert, Dr.

Walter Molofsky, examined Nicholas on March 25, 1992, noted no further seizures, and discontinued his anticonvulsive medication. Dr.

Molofsky observed normal gross and fine motor function, normal receptive vocabulary and comprehension, and described Nicholas as alert, active, and pleasant, though he did note an expressive language delay. Later reports from Dr.

Molofsky and Dr. Burton Banner confirmed receptive and expressive language delays, leading to Nicholas's enrollment in a special school for children with speech delays.

The respondent argued that even if Nicholas had suffered a Table seizure disorder or encephalopathy, the petitioner had not demonstrated that the later language and learning problems were lasting complications or sequelae of that acute injury. Chief Special Master Gary J.

Golkiewicz held a hearing on August 2, 1993, and found that Nicholas had shown a residual seizure disorder under the Vaccine Injury Table. However, he determined that the petitioner failed to establish a causal link between the Table injury and the later learning disability and language delays.

The petition was dismissed on December 9, 1993. On review, Judge Bohdan A.

Futey Yock affirmed the dismissal on March 29, 1994. The Court held that the Act does not presume every subsequent negative condition to be compensable simply because an earlier Table injury occurred; a causal connection between the acute vaccine injury and the later condition must still be proven.

No compensation was awarded. Petitioner's counsel was not named.

Respondent's counsel was not named. The Special Master was Gary J.

Golkiewicz. The reviewing judge was Bohdan A.

Futey Yock.