The White Queen Awaits Her Breakfast – The Psychological and Legal Gymnastics of Autism Following Vaccine Induced Encephalopathy in the NVICP
Special Master Denise K. Vowell in Snyder v HHS – 2/19/09
"To conclude that Colten's condition (autism) was the result of his MMR vaccine, an objective observer would have to emulate Lewis Carroll's White Queen and be able to believe six impossible (or, at least, highly improbable) things before breakfast.” [i]
Special Master Denise Vowell’s used these words in her stinging dismissal of the Snyder case in the Omnibus Autism Proceedings. By invoking Alice’s Adventures in Wonderland and Through the Looking-Glass, Vowell was advising the petitioners and the American public that claiming that vaccines cause autism was simply preposterous. The imperious language used in dismissing the Snyder case was designed to send the message that those who claim a link between autism and vaccines are in league with the Mad Hatter.
Then the other day, the dogged Wayne Rohde found this case buried in the Unpublished Vaccine Cases section of the US Court of Claims website:
“I find that M.W.’s development was, more likely than not, within normal limits prior to his July 6 vaccinations. Thereafter, it deteriorated, and eventually he received an ASD diagnosis. I am not required to find that the vaccination actually caused that diagnosis. Rather, I find that the neurological and behavioral symptoms he displayed for well more than six months after the vaccination constituted a chronic encephalopathy, which meets the diagnostic criteria for ASD.
Many, if not most, cases of ASD constitute a chronic encephalopathy. However, only rarely do the symptoms of ASD follow an acute encephalopathy, in which some of those symptoms are part of the acute encephalopathic picture. This case is one of those rare events. Because M.W. had an acute encephalopathy meeting the Table requirements, followed by a chronic encephalopathy, a presumption of causation attaches regarding his current condition.
I emphasize again that this is NOT a case in which a judicial determination has been made that vaccines actually caused a child to develop ASD. Since I was assigned to the “autism docket” in early 2007, as one of the three special masters to hear the OAP test cases, I have had approximately 1800 cases alleging vaccine causation of ASD on my docket. In my nearly nine years on this autism docket, I have not read or heard any reliable evidence in any case, including this one, that vaccines can or do cause ASD…
M.W. experienced an acute encephalopathy, with onset beginning within two hours of his Pentacel vaccination. The acute encephalopathy persisted for more than 24 hours. Although there is some evidence of an intercurrent illness, that evidence does not reach the level of preponderant evidence of alternate cause. M.W. never returned to baseline after the vaccination. He has a chronic encephalopathy which has persisted for over six months…Petitioners are therefore entitled to compensation for M.W.’s condition as a Table encephalopathy.”
It must have been difficult if not somewhat awkward for outgoing Chief Special Master Vowell to issue the order awarding compensation in the recently posted Wright case. The language she utilized to explain this decision indicates that this case presented her with a difficult set of psychological gymnastics and legal maneuvers.
What essentially happened here is that the child, M.W., tragically suffered an encephalopathy (brain injury) following vaccinations he received on 7/6/09. Vowell states her view that vaccine induced brain damage occurs “rarely” but that the case met the requirements of the Table of Injuries used in the NVICP. She immediately points out on the second page of the order that there is an additional problem with this particular case:
“M.W.’s current diagnoses include an autism spectrum disorder [“ASD”].6 Some of the behavioral symptoms of this disorder constitute the persisting encephalopathic condition necessary to satisfy the remainder of the Table injury requirements—that a chronic encephalopathy persist for at least six months and include symptoms persisting from the acute encephalopathy…This is not to say that the vaccine was the actual cause of M.W.’s ASD or of any symptom of M.W.’s ASD. This decision should not be construed as holding that a vaccine can or does cause ASD.”
Vowell is to be commended for properly directing that this child be compensated for vaccine induced brain damage even though the child also has autism.
The tortured language Vowell used in the decision shows the conundrum of autism in the NVICP. The ‘Vaccine Court’ was founded to confront the reality of children suffering seizures and brain injury following immunization. While the Table of Injuries doesn’t specifically say “autism” it is obvious that those who crafted it understood that vaccine-induced brain damage often resulted in a child suffering from the behaviors that qualify for an autism diagnosis.
Those who understood vaccine injury in the 1980’s knew what it looked it like.
And so we are presented here with Vowell’s curious notion that a vaccine could cause brain damage that results in symptoms that are described on the Injury Table as Encephalopathy and that some of those symptoms might also result in that same person receiving a diagnosis of autism. However, this doesn’t mean that the vaccine also caused that person’s autism.
The autism that this child is dealing with is quietly referred to as “Secondary Autism” by Special Masters and others working in the NVICP. “Secondary Autism” and “Primary Autism” are defined in this footnote on this Institute of Medicine (IOM) document prepared for the Committee to Review Adverse Effects of Vaccines.
* “Secondary” autism or autistic features arising from chronic encephalopathy, mitochondrial disorders and/or other underlying disorders will be considered by the Committee. For “Primary” autism, VICP has asked the IOM to consider the review of the medical literature post Immunization Safety Review: Vaccines and Autism (2004) report. In particular, VICP is interested in the Committee’s review on more recent theories of “neuroinflammation” and “hyperarousal/overexcitation of the immune system via multiple simultaneous antigenic stimulation.”[iii]
This notion of “Secondary Autism” echoes through the Child Doe 77 (Hannah P.) case where we see federal health officials claiming that the vaccine injury “didn’t cause” the child’s autism but that it “resulted” in it.[iv]
One might recall that former CDC Director Julie Gerbeding insisted that Child Doe 77 was a “rare” case and that we shouldn’t consider the government concession as an admission that vaccines cause autism.
Autism following acute encephalopathy was noted by Chief Special Master Gary Golkiewicz in the very order that started the Omnibus Autism Proceedings:
“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 vaccinee 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 vaccine 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.”[v]
Despite the rulings in the Omnibus Autism Proceedings, the specter of autism continues to haunt the NVICP. As Golkiewicz states, any residual effects of the encephalopathy are presumed to be vaccine caused.
That would include autism when it is a residual effect of the encephalopathy.
And the problem with Secondary Autism or residual autism or “rare” autism that follows encephalopathy is that it is still autism.
In Unanswered Questions from the Vaccine Injury Compensation Program: A Review of Compensated Cases of Vaccine-Induced Brain Injury, Holland, Conte, Krakow and Colin found 83 cases of autism in encephalopathy cases compensated by the NVICP.[vi]
Other cases of vaccine-induced brain damage featuring autism have emerged since Unanswered Questions was published in May of 2011. Were these cases – or the Wright case - different than the cases denied compensation in the Omnibus Autism Proceedings?
Vowell noted that the respondent’s expert witness, Dr. Max Wiznitzer claimed that all of these previously compensated cases featuring encephalopathy (and even autism) had the genetic polymorphism which caused Dravet’s syndrome. This remarkable claim is based on the 2006 Berkovic study which is wrought with concerns. The study used a low number of subjects – 14 - not enough to be truly conclusive. Another concern is that the Berkovic study was funded by a pharmaceutical company, Bionomics.[vii] Upon adopting the Berkovic study and the follow-up McIntosh study[viii], DOJ attorneys with the blessing of the Special Masters, have concluded that “the kids with Dravet’s Syndrome are going to suffer epilepsy and seizures anyway.”
This belief that a genetic polymorphism, in this case SCN1A, destines a child develop Dravet’s is not fully supported. Some parents of these children also report possessing the polymorphism but do not have the disorder. This issue requires much more research before it is to be accepted as scientific fact.
This didn’t stop Dr. Paul Offit, the vaccine industry’s chief spokes-person from adding insult to injury in his book, Deadly Choices. Offit blames the parents:
After Berkovic paper, it was clear that all the time spent by parents to get health officials to admit that pertussis vaccine had permanently harmed children, all the money spent by pharmaceutical companies to compensate alleged victims, all the work of lawmakers to create a system to deflect lawsuits away from these companies, and all the ink devoted by the media to support these children and their parents had been an enormous diversion from the real cause of the program.[ix]
However, this child didn’t have the genetic marker for Dravet’s. This child received his vaccinations then suffered brain damage and developed autism.
It’s that simple and that awful.
Special Master Vowell has ordered the Secretary of Health and Human Services to provide compensation for this child. The parents will have some resources to help them care for their son.
No one should pump their fists or claim victory. There are no victories in the Vaccine Court.
If we really want to find some meaning in what has happened to M.W. and to Child Doe 77 and all of the other “rare” cases of children who have suffered vaccine induced brain damage, Congress should step up and hold hearings on the NVICP and ask those who work there just how rare these cases really are. An independent assessment of the health outcomes of those compensated for vaccine injury would provide that answer.
Special Master Vowell has moved on. She will no longer have to perform the legal and psychological gymnastics around these cases where, like it or not, a vaccine injury results in autism but somehow, didn’t cause it.
And the White Queen is waiting for her breakfast down at the Office of the Special Masters.
The Autism War at Barnes & Noble and Amazon.
The Vaccine Court at Barnes & Noble and Amazon.
All books published by Skyhorse Publishing – New York City
[v] Autism General Order #1 (section E), July 3, 2002, http://www.uscfc.uscourts.gov/sites/default/files/autism/Autism+General+Order1.pdf
[viii] McIntosh, 2010, “Effects of Vaccination on onset & outcome of Dravet Syndrome.”
[ix] DEADLY CHOICES, supra note 56, at 42-43