Vaccine Court: MMR led to Pervasive Developmental Disorder

by Elizabeth McBreen

The decision made in favor of the family in the case of Bailey Banks v. the Department of Health and Human Services (HHS) is not surprising, given the evidence. It does, however, raise questions about the difference between cases such as Banks’ and the three Autism Omnibus test cases that were recently found in favor of the HHS. The answer might must be in the questions that are being asked.

This case begins in a familiar way. He was born in October of 1998, and developed normally during his first year of life. He had no signs of chronic illness or delay. During his 15-month check-up in March of 2000, Banks was deemed in good health and received the measles, mumps and rubella (MMR) vaccination. Sixteen days later, he had a seizure and was taken to the Emergency Room. Scans, examinations, observations and several diagnoses followed.

In July of 2007, Special Master Richard Abell ruled in Vaccine Court that Banks had experienced “a proximate sequence of cause and effect leading inexorably from vaccination to Pervasive Developmental Delay.”

According to the United States Court of Federal Claims decision, the day after Banks was admitted to the hospital, he received a magnetic resonance imaging (MRI) scan. The treating radiologist found evidence of “a demyelinating process of immune etiology such as may be seen with ADEM or perhaps post-vaccination.” Further neurological examinations showed “mild gross motor developmental delay”.

The Transverse Myelitis Association’s (TMA) website defines acute disseminated encephalomyelitis (ADEM) as a “neurological disorder characterized by inflammation of the brain and spinal cord caused by damage to the myelin sheath.” Myelin is the protective sheath that insulates nerve cells. TMA’s website states that ADEM can occur as a complication of vaccination and occurs more often in children than adults.

The attorney representing the Banks family, Michael McLaren, Esq. says that the Banks case was tried as a Pervasive Developmental Disorder (PDD) case. Bailey does receive services for autism, according to McLaren, but the case did not pose the question, “Do vaccines cause autism?” McLaren says that, “The facts allowed us to pursue PDD rather than autism. We had a rock-solid neurologist who said that encephalopathy brough on ADEM, resulted in global developmental delay, which is on the spectrum and akin to autism, but the onset was different than the autism omnibus cases.” He adds that the Banks case did not prove that vaccines cause autism, but that the results of ADEM can be on the spectrum.

One of Banks’ treating neurologists explained during his expert testimony in Vaccine Court that ADEM occurs when a person “has been exposed to a foreign protein, in this case [the] vaccine.” The foreign protein causes the production of antibodies which ultimately destroys the myelin that protects nerve cells.

In the Banks decision, it is concluded that Bailey did in fact suffer from ADEM and that it was brought on by the MMR vaccine. The ruling then states that “Bailey’s ADEM was severe enough to cause lasting, residual damage, and retarded his developmental progress, which fits under the generalized heading of Pervasive Developmental Delay, or PDD. The Court found that Bailey would not have suffered this delay but for the administration of the MMR vaccine.”

Attorney and director of SafeMinds, Jim Moody Esq, says that there is very little difference between the cases that have received compensation through Vaccine Court and those that have not. One variation, he says, is the kind of evidence presented in the cases. The MRI that Banks received two weeks after vaccination lead to his ADEM diagnosis.

Moody says that the good news is that this case adds another piece of evidence pointing to vaccines as causation for autism. An MRI, in conjunction with clinical indicators, will show whether or not a child is suffering from ADEM. However, the evidence of ADEM does not last. The disorder is monophasic, meaning that a patient will suffer a single phase of acute symptoms and then the disorder usually resolves itself.

Banks’s neurologist points out that most patients who suffer from ADEM significantly improve over time. He adds that the exception is patients who have been exposed to the measles virus, as in the MMR vaccine. According to his expert testimony, Banks’s neurologist says that half of these patients may suffer sequela, or a condition resulting from a disease or injury, “up to 50 percent of patients ... who have had ADEM will show[,] as a consequence of this monophasic condition[,] PDD.”

Robert Krakow, a lawyer and member of the Autism Omnibus Petitioner’s Steering Committee, says that the Banks case will only be surprising to those outside of the autism community. “If you are part of this world,” says Krakow, “then it is not surprising.”

Considering the denial of compensation in the first three autism omnibus test cases and the decision in the Banks case, Krakow says that there is a conceptual problem with the question being asked by the petitioners in the omnibus cases. He says that since autism is defined behaviorally, it is easy for the government to deny omnibus claims, “We cannot prove something with biological evidence if it is not defined biologically,” says Krakow.

He points to the many cases of parents and doctors who were able to uncover the underlying biological mechanisms causing a child’s autistic symptoms. The problem is that Vaccine Court is applying the biological evidence to the behavioral definition of autism. “In my opinion, anyone who asks, ‘Do vaccines cause autism?’ is asking for a negative response.”

Following a request for comment on the Banks case, the HHS issued a statement that seems to confirm Krakow’s concerns, “The government has never compensated, nor has it ever been ordered to compensate, any case based on a determination that autism was actually caused by vaccines. We have compensated cases in which children exhibited an encephalopathy, or general brain disease.

Encephalopathy may be accompanied by a medical progression of an array of symptoms including autistic behavior, autism, or seizures. Some children who have been compensated for vaccine injuries may have shown signs of autism before the decision to compensate, or may ultimately end up with autism or autistic symptoms, but we do not track cases on this basis.”

Krakow says that in some cases where damages have been awarded for instances of encephalopathy and seizure disorder, the children had also been diagnosed as autistic; but the diagnosis was not the basis of the petitioners’ argument in court. “Considering that, I think we are asking the wrong question,” says Krakow. “It should be, ‘Do vaccines cause brain injury?’”

Another difference that Moody notes between the Banks case and the three autism omnibus cases that were found in favor of the HHS in February, is that Abell conforms with the Vaccine Court process in terms of reasonable doubt. Moody says that Abell accepted the medical expert’s explanation of how ADEM can lead to PDD. There is no published literature on this connection, which the petitioner’s medical expert acknowledges in his testimony. “But,” says Moody, “Abell used the testimony as evidence that created doubt in favor of the family. This is how Vaccine Court should operate.”

McLaren says that the challenge for the petitioners in the autism omnibus cases, depending on the appellate results, will be to find the appropriate evidence that supports the injury sustained by the child. He says that he does not know how prevalent, ADEM is, but says “I suspect more people will start to look for it.” He says that the Banks case shows that demyelination can result in PDD, and he suspects that it can cause autism, but he is not currently trying any cases that make that claim.

In addition to expert testimony connecting the MMR vaccine to ADEM and ultimately to PDD, the petitioner also cited two past Vaccine Court cases in which special masters found that the MMR vaccine had caused ADEM.

Moody says that an important lesson can be learned from the Banks case, “If a parent suspects their child has autism or vaccine injury they should request every possible test and document everything.” Krakow notes that it took decades for public health officials to acknowledge the threat of substances such as lead, asbestos and tobacco. Considering it was one decade ago that Dr. Andrew Wakefield raised the question of whether environmental factors could lead to autism, he says the autism community has a long road ahead.