Barone v. HHS, (Fed. Cl. Spec. Mstr. Jun. 12, 2016) (Corcoran, SM)

Petitioner was wheelchair dependent, suffered from quadriparesis, and was vision and cognition-impaired. She was unable to be cared for at home due to family dynamics. The parties’ life care planners had reached an agreement on most life care plan items, including moving petitioner to a smaller, higher quality nursing home. The one remaining issue for judicial resolution was whether petitioner was entitled to one-on-one attendant care while in the nursing home, and, if so, how many hours. Petitioner had asked for 40 hours per week.

The court held that the Act’s “reasonably necessary” standard does not permit an award in an amount sufficient to “optimize” a party’s quality of life, thus the court could not award 40 hours per week. However, the court found that some supplemental attendant care was warranted under the circumstances – enough to meet some of petitioner’s “basic needs,” while not “optimizing” her quality of life on a daily basis. The fact that petitioner could not be cared for at home, and was estranged from family members that might otherwise provide home assistance, suggested a need for a modicum of additional, one-on-one care that even a top-of-the line skilled nursing care facility cannot consistently provide. Because the minimum time offered for the requested care was four hours per day, the court awarded that amount.

Vaccine Case Reviews Damages – Supplemental Attendant Care in Nursing Home