A Not-So-Hidden History · 2008-03-11 17:45

The United State government is compensating at least one child for vaccine injuries that resulted in a diagnosis of autism.
And that is big news, no matter how you want to say it. — David Kirby, Huffington Post, February 25, 2008

The “big news” of Poling v. HHS — the recent award of compensation authorized by the Vaccine Injury Compensation Program to a Georgia child whose genetically-transmitted mitochondrial disorder was significantly aggravated by a vaccine reaction — is, in fact, not news at all. Since its inception, the VICP has paid out over $1,750,000,000 to cover the medical and life care needs of vaccine-injured individuals. Nearly 12,500 petitions have been filed, over 6,700 cases have been adjudicated, and over 2,100 cases have resulted in awards of compensation.

Published VICP decisions include at least nine instances in which compensation was awarded for the lifelong care of children and young adults who were diagnosed with autism or related conditions after they sustained documented, verifiable vaccine injuries.

Kleinert v. HHS (Case 90-211V, 1991 U.S. Cl. Ct. LEXIS 69, February 20, 1991)
DPT vaccine administered in February 1981.
Seizure disorder in a child diagnosed with “overfocussing,” “similar in some respects to autism.”
Michael Hugo, counsel for petitioner; Denis J. Hauptly, Special Master

Underwood v. HHS (Case 90-719V, 1991 U.S. Cl. Ct. LEXIS 373, July 31, 1991)
DPT vaccine administered in 1974.
Seizure disorder in a child diagnosed with autism.
Curtis Webb, counsel for petitioner; Elizabeth Wright, Special Master

Sanford v. HHS (Case 90-2760V, 1993 U.S. Claims LEXIS 49, May 10, 1993)
DPT vaccine administered in September 1979.
Seizure disorder in a child with “autistic tendencies.”
Mari Bush, counsel for petitioner; LaVon French, Special Master

Bastian v. HHS (Case 90-1161V, 1994 U.S. Claims LEXIS 196, September 22, 1994)
DPT administered in December 1984.
Seizure disorder in a child diagnosed with autism. Testifying doctors for petitioners and HHS all agreed that while he “exhibits some autistic symptomatology, [he] is not autistic.”
Boyd McDowell, counsel for petitioner; Richard Abell, Special Master

Lassiter v. HHS (Case 90-2036V, 1996 U.S. Claims LEXIS 216, December 17, 1996)
DPT vaccine administered in 1972.
Seizure disorder in an young man diagnosed with autism. The court ruled that a diagnosis of idiopathic autism (i.e., autism of unknown origin) was not sufficient to establish a “factor unrelated” that might result in the dismissal of a claim.
Clifford Shoemaker, counsel for petitioner; LaVon French, Special Master

Suel v. HHS (Case 90-935V, 1997 U.S. Claims LEXIS 210, September 22, 1997)
DPT vaccine administered in the 1980’s.
Aggravation of tuberous sclerosis in a child diagnosed with autism.
Richard Gage, counsel for petitioner; Laura Millman, Special Master

Freeman v. HHS (Case 01-390V, 2003 U.S. Claims LEXIS 285, September 25, 2003)
MMR vaccine administered in July 1999.
Seizure disorder in a child displaying features of “atypical autism.”
Ronald Homer and Sylvia Chin-Caplan, counsel for petitioner; George L. Hastings, Special Master

Noel v. HHS (Case 99-538V, 2004 U.S. Claims LEXIS 354, December 14, 2004)
DPaT and HiB vaccines administered in March 1997.
Seizure disorder in a child diagnosed with autism.
Clifford Shoemaker, counsel for petitioner; Laura Millman, Special Master

Banks v. HHS (Case 02-0738V, 2007 U.S. Claims LEXIS 254, July 20, 2007)
MMR vaccine administered in March 2000.
The child was diagnosed with PDD secondary to acute disseminated encephalomyelitis (ADEM).
Michael McLaren, counsel for petitioner; Richard Abell, Special Master

A Lexis search for the term “mental retardation” — a diagnosis that has been given to many individuals later diagnosed with autism — yields many more results.

In each of the above-listed cases, the autism diagnosis followed the development or aggravation of profoundly disabling physical conditions. In each case, the petitioners presented contemporaneous medical records documenting a severe reaction that occurred within a time frame the Special Master determined was reasonable in previous cases involving the same vaccine. As established in Lassiter v. HHS, an autism diagnosis does not prevent compensation for individuals who can demonstrate to the satisfaction of the special master that they have experienced a vaccine injury. However, in no instance has the VICP awarded compensation to cognitively disabled individuals who were not also physically disabled.

In each of the above-listed cases, a dispute existed between the parties, a hearing was held, and a published decision was issued. More frequently, compensation is awarded by the VICP pursuant to a “stipulation” — i.e., a settlement agreement, offered by HHS’ Department of Vaccine Injury Compensation if documentary evidence (such as medical records and affidavits) supports a finding of entitlement without the need for a hearing. Decisions adopting the terms of a stipulation are not indexed by legal publishers; however, all unpublished decisions of the VICP issued since 2004 have been made freely available on the U.S. Court of Federal Claims website. Decisions in settled cases generally do not discuss medical issues at length, and often simply identify the vaccine that caused the injury, and the extent to which the parties agree to the facts of the case.

In all but one of the above-listed cases with published decisions, the petitioners were represented by individuals who are now or have been members of the OAP Petitioners Steering Committee — including its chairman, Mr. Clifford Shoemaker, counsel to the Poling family.

Comments


  1. So roughly 1 in 3 of the adjudicated cases cases resulted in compensation. Not bad statistics, all things considered. The burden of proof is not very high (for a “Table Injury”).

    I read it as proof that the system works.

    In the very first Autism Omnibus case, the Cedillos would probably have obtained compensation for the high fever resulting in lasting damage, shortly after the vaccine injection, under the standard VICP program.
    But they have been persuaded to serve as a test case for the Autism Omnibus case, that state that Thimerosal first weakened Michelle’s immune system, and afterwards that the attenuated measles virus caused a brain injury, a very different proposition, and as it turns out, a much harder case to prove, since the petitioners lack the basic scientific evidence.

    I expect Cedillos may nevertheless get compensation for the damages presumably caused by the fever, but not for their daughter autism.

    Any Kirby will crow Victory.

    — _Arthur    2008-03-11 19:44    #

  2. Whoopty-frickin-doo. Now if no kid with autism had ever been injured by a vaccine, THAT would be news. (And not one I’d expect to see Kirby reporting! “Autism Protects Against Vaccine Injuries” – nope, he’d cut off a limb first.)

    Kirby’s attempts to manufacture controversy are increasingly pathetic.

    — isles    2008-03-14 11:01    #

  3. In other words, pigs have flown and the sky has fallen about 8 times prior. I wonder how come it was Kathleen who uncovered this information and not the mercury militia. Well, you can’t expect them to be as thorough I guess.

    — Joseph    2008-03-14 17:11    #

  4. Superbly written, Kathleen, as usual.

    — Rich    2008-03-16 16:59    #

  5. Prompted by a question from Autism Diva elsewhere, I went back and looked at the first order issued in the Autism Omnibus Proceeding, the July 3, 2002 Autism General Order #1. There Chief Special Master Golkiewicz recounted how Cliff Shoemaker and other counsel for petitioners wanted to put the autism claims on hold pending scientific developments that they could use as proof of causation. Although the Special Master agreed to place the cases on hold, he forcefully reminded petitioners and their counsel that “[a]utism cases involving Table Injuries have been compensated under the Program,” and that cases like that should not be held up in the omnibus proceeding:

    “One important caveat, however, is drawn to the attention of all petitioners and their counsel! There may be cases involving autistic-like disorders which manifested following an injury defined in the Vaccine Injury Table. That is, a vaccine may have suffered an episode involving a severe acute encephalopathy within 72 hours after a pertussis vaccination (DTP or DTaP), or 5 to 15 days after an MMR vaccination. If so, such an acute encephalopathy and any residual effects thereof would be presumed to be vaccine-caused pursuant to the Vaccine Injury Table. See 42 C.F.R. § 100.3(a) (10-1-97 version of CFR).5 However, this would apply only to cases falling within the current Vaccine Injury Table’s definition of “acute encephalopathy,” in which the vaccinee suffered a sudden, dramatic, and severe change in level of consciousness lasting at least 24 hours. 42 C.F.R. § 100.3(b)(2)(i)(A) and (D). The incident must have been “sufficiently severe so as to require hospitalization,” though actual hospitalization at the time need not have occurred. 42 C.F.R. § 100.3(b)(2)(i). Autism cases involving Table Injuries have been compensated under the Program. If in a particular case there exist medical records demonstrating that such a qualifying “acute encephalopathy” occurred within the appropriate time frame, petitioner or counsel should bring that to the assigned special master’s attention so that, if appropriate, the case can be processed without delay as a Table Injury.

    Finally, petitioners should note that even after electing to have their case stayed pending the conclusion of the Omnibus Autism Proceeding, such election is not irrevocable. That is, if at a future time a petitioner determines that his own case should be separated from the Omnibus Autism Proceeding and processed separately, with the petitioner introducing case-specific proof of causation, such petitioner may request that a special master analyze his case. A special master will be assigned and the case will be processed as expeditiously as possible.”

    (7/3/02 Autism General Order #1, pp. 6-8.)

    The Polings’ petition was filed in late October of 2002, after General Order #1 was issued. Her medical records were not provided to HHS until September of 2007 – she had the encephalopathy, and HHS immediately agreed that she should be compensated. Why did she have to wait so long to get her claim processed? Isn’t this the type of claim that was supposed to be processed without delay?

    — Anne    2008-03-16 18:08    #

  6. Yes, it is. I suspect that, except for selection of “test cases,” the petitioners’ attorneys have spent much more time aggregating claims and developing general causation arguments than determining whether the facts of specific cases warrant their withdrawal from the Omnibus and speedy processing as table injury claims. That might benefit those petitioners whose claims are speculative and/or not well-supported by contemporaneous medical records; and it might benefit their attorneys, who will doubtless bill the Program for every minute of time they spend aggregating and arguing and dragging out the whole process into eternity. But it doesn’t do a damned bit of good for families where children actually have sustained vaccine injuries and who have the documentation to prove it, but whose cases have been put on hold “for the good of the herd.”

    — Kathleen Seidel    2008-03-17 12:02    #

  7. Anne, one would think that the claim for compensation would be processed swiftly. It appears that it is not.

    I wish I had the testimony, but one can find it online. John Salamone, he was the president of Informed Parents Against Vaccine Associated Paralytic Polio.

    His son, who had primary immunodeficiency contracted polio from the old OPV.

    He described how difficult the process of gaining compensation was.

    Some digging may find where he references the process.

    I did find this- a hearing- COMPENSATING VACCINE INJURIES: ARE REFORMS NEEDED?

    http://bulk.resource.org/gpo.gov/hearings/106h/66079.pdf

    Salamone testifies in this hearing as well.

    Intersting to note that Shoemaker testifies and has some personal info. (this the Poling’s attorney, right?) His sister contracted polio as a child, and has been confined to a wheelchair her entire life.

    My child, who was born autistic, and immunodeficient, had an adverse reaction after both Varicella and DTaP. She developed facial tics after the DTaP, and pituitary damage,and encephalitis after the Varicella vaccine. She also did not produce antibodies against varicella or pertussis, barely responded to diptheria or tetanus, and only responded to 2 of the 12 components to the Prevnar vaccine, despite the clinic accidentally giving her a 5th dose of Prevnar.

    While I know her autism was present from birth, the adverse reactions she suffered from these vaccines DID cause her condition to become much more severe.

    Today, our attorney filed our claim with NVICP.

    Guess I will soon learn how this process

    btw, she never had a thimerosal containing vaccine!

    — monica    2008-03-17 13:02    #

  8. Can you please advise me of a lawyer I may contact regarding our child’s autism?

    — Julia Maxwell    2008-04-15 19:31    #

  9. Ms. Maxwell, definitely NOT Cliff Shoemaker!

    (oh, have you read much of this website?)

    — HCN    2008-04-22 10:29    #