The opinion
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 11-707V
(To be Published)
Filed: May 12, 2016
********************************
BONYE WOLF BARONE, as Conservator *
of Person and Estate of JOAN NOVARRO, *
*
Petitioner, * Special Master Corcoran
*
v. *
* Damages Ruling after Hearing;
SECRETARY OF HEALTH AND * Attendant Care; Reasonably
HUMAN SERVICES, * Necessary Medical Services.
*
Respondent. *
*
********************************
Rene Gentry, George Washington University Law School Vaccine Injury Clinic, Washington,
DC, for Petitioner.
Lisa Watts, U.S. Dep’t of Justice, Washington, DC, for Respondent.
RULING REGARDING DISPUTED DAMAGES ITEM1
Joan Novarro2 filed a petition on October 25, 2011, seeking compensation under the
National Vaccine Injury Compensation Program (the “Program”)3 and alleging that she incurred
Guillain-Barré syndrome (“GBS”) after her receipt of the influenza (“flu”) vaccine on October 31,
1
Because this ruling contains a reasoned explanation for my action in this case, I will post it on the United States
Court of Federal Claims’ website, in accordance with the E-Government Act of 2002, 44 U.S.C. § 3501 (2012). As
provided by 42 U.S.C. § 300aa-12(d)(4)(B), however, the parties may object to the published decision’s inclusion of
certain kinds of confidential information. Specifically, under Vaccine Rule 18(b), each party has 14 days within which
to request redaction “of any information furnished by that party: (1) that is a trade secret or commercial or financial
in substance and is privileged or confidential; or (2) that includes medical files or similar files, the disclosure of which
would constitute a clearly unwarranted invasion of privacy.” Vaccine Rule 18(b). Otherwise, the whole ruling will be
available to the public. Id.
2
On February 18, 2014 (ECF No. 46), Petitioner moved to amend the caption to make Bonye Wolf Barone,
Conservator of Person and Estate of Joan Novarro, the petitioner, and I granted the motion on April 17, 2014. ECF
No. 49.
3
The Program comprises Part 2 of the National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat.
3758 (codified as amended, 42 U.S.C. §§ 300aa-10 to 34 (2012)) (“Vaccine Act” or “the Act”). Individual section
references hereafter will be to § 300aa of the Act.
2008. Petition at 1 (ECF No. 1). After a motion for a ruling on the record, I issued an entitlement
decision in Ms. Novarro’s favor. See Ruling on Entitlement, dated Nov. 12, 2014 (ECF No. 58).
The parties have since been attempting to calculate Ms. Novarro’s damages award. This past
winter, the parties reported to me that their respective life care planners had agreed on all damages
items with one exception: the necessity of eight hours per week day of attendant care for Ms.
Novarro in the skilled nursing facility to which she will be transferred after a damages award is
made in this case. For the reasons stated below, I find that Petitioner has established the propriety
of some, but not all, of the hours of attendant care requested.
Procedural Background and Disputed Life Care Plan Component.
After initiating this action, Ms. Novarro spent the period of time from the fall of 2011 into
2012 obtaining and filing medical records pertinent to her claim in this case. On August 8, 2012,
Respondent filed her Rule 4(c) Report, asserting that Petitioner was not entitled to an award of
compensation because she could not satisfy her burden of establishing causation-in-fact based
upon the test set forth in Althen v. Sec’y of Health & Human Servs., 418 F.3d 1274, 1278 (Fed.
Cir. 2005). ECF No. 27. Petitioner subsequently filed additional medical records, including
evidence of her influenza vaccination (an omission Respondent had pointed out in her Rule 4(c)
Report). Ex. 49 (ECF No. 32). After the Petitioner filed her expert report, Respondent asked for a
ruling based on the existing record. See January 30, 2014, Supplemental Rule 4(c) Report and
Request for Ruling on the Record (ECF No. 45). I issued my decision in Ms. Novarro’s favor in
November 2014.
Thereafter the parties attempted to calculate a damages award in this case. Both sides
retained life care planners – Nancy Bond, M.Ed, CCM, CLCP, for Petitioner, and Laura Fox, MSN,
BSN, RN, for Respondent – who worked closely together to prepare a single plan for Ms. Novarro
acceptable to all. Although the process was time-consuming, by March 2016 the parties had
reached agreement on virtually all aspects of the draft plan. See Updated Joint Life Care Plan,
dated Mar. 3, 2016 (“JLCP”), attached as Ex. D to Respondent’s Pre-hr’g Submissions (ECF No.
87).
The sole remaining disputed aspect of the life care plan is the necessity of a personal care
attendant for Ms. Novarro. At the present time, Ms. Novarro’s condition (she is wheelchair-
dependent, suffers from quadriparesis4, and is vision and cognition-impaired), and her personal
family circumstances5, require her to live in a skilled nursing facility. JLCP at 13. Although Ms.
4
Quadriparesis, or tetraparesis, is muscular weakness that affects all four limbs. Dorland’s Illustrated Medical
Dictionary 1565, 1096 (32d ed. 2012).
5
The parties are in agreement that home care for Ms. Novarro is impossible given her family situation. A letter filed
prior to the damages hearing by Ms. Novarro’s conservator (and nominal petitioner), Ms. Barone, states that the
conservatorship was originally established because Ms. Novarro’s daughter was mishandling funds required for her
2
Novarro has resided in Chesterfields Nursing Home in Chester, Connecticut since January 2012,
the parties concur that a smaller facility in the same area, Essex Meadows in Essex, Connecticut,
with excellent reviews from a nursing home comparison chart posted on the Government’s
“Medicare.gov” website6 could better meet her needs, and that the cost of the new facility was
comparable. Id. They have accordingly agreed to have Ms. Novarro moved to Essex Meadows
once a damages award issues.
However, the parties disagree on the need for additional attendant services for Ms. Novarro
beyond those provided by Essex Meadows. Ms. Bond believes that Ms. Novarro would greatly
benefit from some individualized care, to provide her opportunities for personal services (such as
showering) and one-on-one socialization that Essex Meadows cannot provide. See Letter, dated
Oct. 29, 2015, from Nancy Bond, filed as Ex. 79 on Nov. 20, 2015 (ECF No. 81-3). Ms. Bond
calculates the cost of such a personal care attendant (based upon an hourly rate of $22 and a
schedule of eight hours of service per weekday (250 days per year)) as $44,000 a year. JLCP at
13. Petitioner also stresses that Ms. Novarro’s mental condition is fragile, and that the ameliorative
impact of an individual attendant to interact with her would assist her health in many respects. Ex.
79 at 2-4.
Respondent disputes the necessity of a personal care attendant. See Letter, dated Mar. 3,
2016, from Laura Fox, attached as Ex. F to Resp’t’s Pre-Hr’g Filing Statement, dated Mar. 4, 2016
(ECF No. 87). Ms. Fox instead believes that Essex Meadows will provide many of the benefits of
the proposed personal care attendant without additional charge. Thus, at Essex Meadows (which
Ms. Fox stresses is a highly-regarded skilled nursing care facility), Ms. Novarro will have the
opportunity to live in a private room, and engage in many more social activities than at
Chesterfields. Ex. F at 1-2. She also notes that Ms. Novarro was never deemed before to require
personal attendant care (even though both sides agree that Chesterfields is a slightly inferior
facility). Id. at 2.
The parties appeared before me on March 31, 2016, to argue their respective views on the
proper resolution of the disputed care item.7 At the hearing’s conclusion, I urged the parties to
treatment. See Letter, dated Mar. 2, 2016, filed as Ex. 90 on Mar. 24, 2016 (ECF No. 91-3). Petitioner’s letter also
references “tensions and animus” within Ms. Novarro’s family, and recommends against allowing Ms. Novarro’s
daughter to play a role in her care. Ex. 90. Ms. Bond for her part has noted that Ms. Novarro’s family cannot provide
any degree of home care for her in this case, and Ms. Fox did not dispute the assertion in any of her pre-hearing filings
(or at hearing for that matter). See Cover Letter, dated Oct. 29, 2015, from Nancy Bond, filed as Ex. 79 on Nov. 20,
2015 (ECF No. 81-3) at 3-4.
6
See Medicare.gov Nursing Home Compare, filed as Ex. 84 on Feb. 17, 2016 (ECF No. 85-2).
7
Petitioner’s case was presented at hearing by three students from the George Washington University Law School’s
Vaccine Injury Clinic – Smitha Uthaman, Stephnie John, and Megan Robertson. Each student comported herself in a
professional manner, and provided able assistance to Petitioner.
3
attempt to settle their dispute, but they were unable to do so, thereby requiring my resolution of
the matter.
Damages Hearing
A. Petitioner’s Expert – Ms. Bond
Petitioner offered the testimony of her life care planner, Nancy Bond,8 who presented
Petitioner’s case for 40 hours a week of attendant care. See generally Transcript of Mar. 31, 2016
hearing (“Tr.”) at 11-55. Ms. Bond emphasized at the outset of her testimony that she had never
before written a life care plan for an individual who would not be cared for at home, and that this
was “troubling,” but that after consulting with members of Ms. Novarro’s family, she came to
understand that “the family was not able to provide a safety net” and therefore Ms. Novarro would
need to be cared for at a skilled nursing facility. Tr. at 14, 27-28, 43, 49.
Besides the familial limitations making home care of Ms. Novarro impossible, Ms. Bond
also testified that (based on her onsite visits with Ms. Novarro at Chesterfields) residence at a
skilled nursing facility was required for proper treatment and monitoring of Ms. Novarro’s medical
conditions. Tr. at 16-18. For example, due to Ms. Novarro’s quadriparesis, two individuals were
needed to transfer her from her bed to a wheelchair. Id. at 33-34. She thus emphasized that her
overall opinion was that Ms. Novarro needed “around-the-clock” care (Id. at 15) – and that only a
facility with the proper staff could provide it.
Despite the above, Ms. Bond concluded that additional attendant care beyond what would
be provided at Essex Meadows was appropriate under the circumstances. Tr. at 18-20. In so doing,
she noted that what a skilled nursing facility actually provided was “24-hour supervision” – staff
available at all times, as opposed to serving the individuals residing at the facility on a constant
basis. Id. at 39. By contrast, an additional personal attendant would be able to assist Ms. Novarro
in maximizing her personal autonomy on a daily basis, by helping her to bathe and shower when
she wished to (id. at 18), or dine (id.), or participate in activities at the facility (id. at 19). To a
large extent, she felt that the attendant care requested would replicate certain elements of care
otherwise available with home residence, but (due to Ms. Novarro’s personal circumstances) that
had to be abandoned in favor of the skilled nursing facility. Id. at 40 (“if I can’t take her out of that
8
Petitioner filed a copy of Ms. Bond’s curriculum vitae in advance of the hearing. See Bond CV, filed as Ex. 88 on
Mar. 7, 2016 (ECF No. 89-1). Respondent did the same for Ms. Fox. See Fox CV, filed as Ex. E on Mar. 4, 2016 (ECF
No. 87-2). Both life care planners also briefly reviewed their credentials in their direct testimony. Tr. at 11-12, 56-57.
In most entitlement cases, an expert’s qualifications bear heavily on the weight to be given her testimony, and would
therefore merit some mention in a decision. However, both Ms. Fox and Ms. Bond are qualified experts on life care
issues with considerable Vaccine Program experience. Moreover, the issue I am called upon to resolve does not turn
on whether I found their pronouncements credible in light of their actual experience, but rather upon my application
of certain legal standards to the facts in this case (while taking into account their recommendations). I therefore omit
a recitation of their respective qualifications in the interests of brevity.
4
institution, then I’m trying to at least bring some normalcy to her life so that she can have someone
enrich and participate in her activities of daily living”). Id. at 49-50.
On cross-examination, Ms. Bond admitted that (although the parties agreed that moving
Ms. Novarro from Chesterfields to Essex Meadows was appropriate) Ms. Barone had herself never
suggested to Ms. Bond that additional one-on-one care of the kind being proposed herein was
needed for Ms. Novarro. Tr. at 23-25.9 She also acknowledged that the transfer to a new facility
would inherently entail better care for Ms. Novarro – although she disputed Respondent’s
suggestions that such increased care was comparable to what she was recommending. Id. at 29-33,
35 (“no one in a nursing facility” receives the kind of individualized care that the proposed
attendant would provide Ms. Novarro).
Ms. Bond also commented on the scope of attendant care requested, admitting that Ms.
Novarro actually only needed three to four hours of additional care per day (beyond what Essex
Meadows would be providing). Tr. at 37. She ultimately concluded that any amount of additional
attendant care would be beneficial, noting that the eight-hour amount requested was produced
mainly by calculating (after taking into account sleep time plus time that Essex Meadows staff
would unquestionably be interacting with Ms. Novarro) what was left in the day. Id. at 52. She
also noted that even if the requested care constituted an additional cost, home care would have
entailed some additional costs as well (due to the need for special equipment or home
modifications) that in this case were being avoided. Id. at 15.
B. Respondent’s Expert – Ms. Fox
Respondent’s life care planner, Laura Fox, provided an explanation for why she could not
accept eight hours of attendant care per day for Ms. Novarro. She explained that after her site visit
with Ms. Novarro at Chesterfields, she accepted Ms. Bond’s recommendation that Ms. Novarro be
moved to a better facility, noting that doing so would (among other things) make it easier for her
to see certain of her family members, such as her daughter-in-law, with whom she remained on
good terms. Tr. at 59-60. She acknowledged the change would constitute a treatment improvement,
but noted her impression that Chesterfields had been “adequate” in meeting her care needs. Id. at
60-61.
Ms. Fox testified as to the differences between the care Ms. Novarro would receive at home
versus in a skilled nursing facility like Essex Meadows. She accepted that it was not “realistic” for
Ms. Novarro to be cared for at home given her family situation, and given the fact that she required
24-hour care of some sort (although Ms. Fox characterized it as monitoring by an available skilled
9
Ms. Bond’s testimony was equivocal as to whether any of Ms. Novarro’s treaters favored additional attendant care.
Thus, although she admitted that one treater, Dr. Juvan, had not directly proposed such care, the possibility of it was
never posed to her, and Ms. Bond suggested that (given that Dr. Juvan is not a life care planner) it would not necessarily
be a care option that would come to a physician’s mind when pondering Ms. Novarro’s “medical needs.” Tr. at 54.
5
assistant rather than constant one-on-one attention). Tr. at 69, 82-83. Rather, “[i]n Ms. Novarro’s
case, the least restrictive environment happens to be a fairly restrictive environment.” Id. at 70.
She acknowledged that Essex Meadows would not provide constant one-on-one assistance to Ms.
Novarro (even if it could provide 24-hour monitoring), but noted that this was never provided to
individuals in such facilities. Id. at 75-76. The only occasion she could recall in her career in which
she recommended, in the course of preparing a life care plan, that an individual receive constant
attendant care involved an injured party who was completely paralyzed, required constant turning
while in bed, and who dwelled in a larger institution than Chesterfields or Essex Meadows. Id. at
67-68. She nevertheless admitted that there were “significant benefits” to home care that, in this
case, were lost, such as the ability to choose when to bathe (although she reiterated her overall
opinion that the Essex Meadows facility agreed to by both life care planners was the best result
under the circumstances). Id. at 88-89.
Ms. Fox did not dispute the overall contours of Ms. Novarro’s care needs (and in particular
her need for assistance with numerous day-to-day activities). Tr. at 62. But she expressed the view
that any additional assistance Ms. Novarro required was only for medication administration or
specific help with performing physical tasks. Id. at 64 (“Medication is the major skilled nursing
need. The rest of her care is ‘aid,’ custodial care, turning, repositioning, being fed, diaper changing
hygiene, bathing”). That kind of assistance, she opined, could be provided by existing services at
Essex Meadows, and did not therefore require a one-on-one attendant. Id. at 65. Indeed, Ms. Fox
felt that a skilled nursing facility like Essex Meadows provided “the highest level of care” available
for a person in Ms. Novarro’s circumstances. Id. at 67.
Given the above, Ms. Fox expressed disbelief that additional attendant care had been
requested by the Petitioner. Tr. at 68. She felt that simply transferring Ms. Novarro to Essex
Meadows would have an ameliorative effect on her care for only a small additional expense. Id. at
69. Eight hours per weekday of additional attendant care would simply duplicate most of what
Essex Meadows would already be providing. Id. at 80-81.
ANALYSIS
The parties dispute whether the requested personal attendant care for Ms. Novarro is a
“reasonably necessary” component of her damages award. Section 15(a)(1)(A)(iii). As observed
in other Program decisions, that phrase is unhelpfully imprecise. I.D. v. Sec’y of Health & Human
Servs., No. 04-1593V, 2013 WL 2448125, at *6 (Fed. Cl. Spec. Mstr. Apr. 19, 2013) (citing Bedell
v. Sec’y of Health & Human Servs., No. 90-765V, 1992 WL 266285, at *4 (Cl. Ct. Spec. Mstr.
Sept. 18, 1992)). However, it was defined in an earlier Program decision to mean “that which is
required to meet the basic needs of the injured person . . . but short of that which may be required
to optimize the injured person’s quality of life.” I.D., 2013 WL 2448125, at *6 (quoting Scheinfeld
6
v. Sec’y of Health & Human Servs., No. 90-212V, 1991 WL 94360, at *2 (Cl. Ct. Spec. Mstr. May
20, 1991)).
To compound the problem, there is little case law helpful to determining what kind or level
of attendant care is “reasonably necessary” under the present circumstances. Lerwick v. Sec’y of
Health & Human Servs., No. 06-847V, 2014 WL 3720309, at *5, n. 5 (Fed. Cl. Spec. Mstr. June
30, 2014) (attributing the dearth of authority as the result of cases settling), mot. for review den’d,
119 Fed. Cl. 745 (2015). However, there are a few cases in which attendant care has been proposed
to supplement home care of an injured vaccinee. The Act explicitly allows petitioners to receive
compensation for “residential and custodial care and service expenses . . . sufficient to enable the
compensated person to remain living at home.” Section 15(c). Although in this case the parties
agree that home care is impossible, Petitioner’s request for attendant care is aimed at
supplementing what Ms. Bond suggests is lost by the need to place Ms. Novarro in a skilled nursing
facility – and so cases in which home care is sought to be similarly supplemented might have some
utility.
Assistance provided an injured party by her own family members is not compensable under
the Vaccine Act. McCollum v. Sec’y of Health & Human Servs., No. 94-136V, 2009 WL 2524190,
at *4 (Fed. Cl. Spec. Mstr. July 27, 2009), mot. for review den’d, 91 Fed. Cl. 86, 92 (2010), aff’d,
412 Fed. App’x 307 (Fed. Cir. 2011). But attendant care is available to supplement home care.
McCollum, 91 Fed. Cl. at 92. In particular, additional attendant care has been permitted in cases
where the injured party is a child, in order to alleviate in some part the burdens placed on parents
and other caregivers. Id.; see also I.D., 2013 WL 2448125, at *7-8 (awarding a sliding scale of
hours over time, as child aged, but refusing to grant continuous care); Johnston v. Sec’y of Health
& Human Servs., No. 88-30V, 1990 WL 299393, at *8 (Fed. Cl. Spec. Mstr. May 21, 1990)
(awarding eight hours per week of attendant care for child until he reached the age of 14 ½). In
such cases, however, the allowable supplemental care is limited, even where the child must be
closely monitored at all times. See, e.g., Davidson v. Sec’y of Health & Human Servs., No. 90-
24V, 1991 WL 43030, at *3 (Cl. Ct. Spec. Mstr. Mar. 14, 1991) (allowing eight hours of attendant
care per week for 48 weeks a year, but eliminating attendant care after injured child becomes 21).
The scope of disagreement between the parties in this case is extremely narrow. Both sides
accept that it is appropriate to “upgrade” Ms. Novarro to a skilled nursing facility, and that in doing
so she will receive more hands-on care than she did at Chesterfields. Both agree that home care
would provide some benefits that cannot be replicated at Essex Meadows. And both sides
presented qualified and credible experts.
Although the evidence presented does not establish a clear medical need for supplemental
attendant care, Petitioner has demonstrated that additional attendant care would greatly improve
Ms. Novarro’s overall day-to-day existence, by better helping her meet many different “basic
7
needs.” I find persuasive Ms. Bond’s testimony that she included this element in her life care plan
because she recognized Ns. Novarro’s circumstances to be unique. It is reasonable to conclude
that, because Ms. Novarro must dwell in an assisted living facility, she is losing some benefits of
home care – and that the damages award should take that into account. If attendant care is permitted
on a supplemental basis in home care circumstances, then in the situations where home care is
impossible, it should also be allowed.
Nevertheless – I must keep in mind the “reasonably necessary” standard in deciding the
present dispute. Despite its vagueness, that standard does not permit an award in an amount
sufficient to “optimize” a party’s quality of life. Thus, even though I accept Petitioner’s assertions
that the care provided by Essex Meadows (which, as Petitioner argued, is not constant even if “24-
hour” in nature) will not make it possible for Ms. Novarro to exercise complete autonomy in
decisions that impact her day-to-day choices, the Act does not permit an award aimed at effecting
such an end. Indeed, as noted above, even under home care conditions injured parties are not
entitled to constant, on-demand assistance. See, e.g., Davidson, 1991 WL 43030, at *3.
Petitioners have also not made a case for the number of attendant hours requested. Indeed,
Ms. Bond acknowledged that fewer hours would still benefit Ms. Novarro. In Lerwick, the most
recent case in which a petitioner and Respondent disputed the amount of attendant care
appropriate, Special Master Moran assiduously evaluated the three medical risks that attendant
care was aimed at addressing (seizures, aspiration of food or saliva, and bed sores), but found that
the existing care the child-vaccinee was receiving was sufficient to ward against such problems.
Lerwick, 2014 WL 3720309, at *8-13. Here as well, Petitioner has not persuasively established
that the 40 hours per week of attendant care requested would not at times be duplicative of what
Essex Meadows will be providing. I also give some weight to the fact that Ms. Novarro was
reasonably cared for at Chesterfields without such assistance.
Taking all of the above into account, I find that some supplemental attendant care is
warranted under the circumstances – enough (borrowing from I.D.’s formulation of the
“reasonably necessary” standard) to meet some of Ms. Novarro’s “basic needs,” while not
“optimizing” her quality of life on a daily basis. The fact that Ms. Novarro cannot be cared for at
home, and appears somewhat estranged from family members that might otherwise provide home
assistance, suggests a need for a modicum of additional, one-on-one care that even a top-of-the-
line skilled nursing care facility like Essex Meadows cannot consistently provide. A lesser amount
of additional attendant care is “reasonably necessary,” and therefore should be included in the
overall entitlement award.
Based upon my discussions with the parties, I have been informed that the minimum time
available for the requested care is four hours per day. I will therefore award a total of four hours
per day of attendant care in addition to that already provided by Essex Meadows. In addition,
8
instead of having the attendant appear five days per week (which would likely lead to some wasted
time when Ms. Novarro did not require the assistance), I will award the attendant services twice
a week. This is consistent with the Program’s compensation limits, and avoids excessive
duplication of services already provided. Petitioner, in consultation with Ms. Novarro and her care
provider, shall determine which days of the week are most appropriate for the additional care, and
can work out a schedule based on the limits set forth herein, once the damages award is finalized.
CONCLUSION
Having considered the evidence in the record in its totality, I am persuaded that Ms.
Novarro should receive four hours of attendant care twice a week, calculated at the sums
presently set forth in the JLCP. The parties are therefore ORDERED to incorporate this ruling into
a proffer that will be the basis for a decision awarding Petitioner compensation for Ms. Novarro.
IT IS SO ORDERED.
s/Brian H. Corcoran
Brian H. Corcoran
Special Master
9