(Article by Megan Redshaw republished from ChildrensHealthDefense.org)
In a medical malpractice case filed in the Madison County Circuit Court in Tennessee, attorneys for Yates argued the clinic and physician who administered Yates’ vaccines, including the measles-mumps-rubella (MMR) vaccine on Feb. 8, 2001, should be held liable for medical malpractice and the neurological injuries Yates developed after being vaccinated.
Although the jury decided in favor of the physician — who Yates’ father said failed to adequately inform the parents of the risks of vaccinating Yates while he had an active ear infection — the case exposed major flaws in a system designed to protect children and shield pharmaceutical companies and physicians from liability for vaccine injuries.
“In the fight to end the autism epidemic, we were all hoping for the one knockout punch that would bring the truth to light and help end the autism epidemic,” Yates’ father, Rolf Hazlehurst, said.
“This medical malpractice trial was the only opportunity in the last 35 years for a jury to hear evidence in a court of law regarding whether a vaccine injury can cause neurological injury, including autism.”
Hazlehurst, who is a senior staff attorney for Children’s Health Defense (CHD), said “unless the Vaccine Act is repealed, my son is probably the only vaccine-injured child with a diagnosis of autism who will ever reach a jury.”
The Hazlehurst case was a medical malpractice case against the doctor who administered the pediatric vaccines that, in the opinion of the world’s top experts, sent Yates, now 22, spiraling into the depths of severe, non-verbal autism.
Although the case was originally filed in 2003, it didn’t receive its day in court for 19 years because a separate case involving Yates’ injury first had to work its way through the National Vaccine Injury Compensation Program (NVICP).
When Yates’ medical malpractice case was finally heard, the trial exposed alarming evidence about autism and vaccines, the low standard of care practiced by physicians administering pediatric vaccines and financial conflicts of interests between pharmaceutical companies that manufacture vaccines and government agencies entrusted with vaccine safety.
During the trial, the world’s top experts in the field of autism and mitochondrial disorder explained how the administration of “routine” childhood immunizations can cause autism, brain injury, and many other disorders.
According to the National Institute of Mental Health, autism is a neurological and developmental disorder that affects how people interact with others, communicate, learn and behave. Symptoms can be severe and usually manifest before a child turns 3, which coincides with the age children receive the most childhood vaccines.
Increasing evidence indicates a significant proportion of individuals with autism have concurrent diseases such as mitochondrial dysfunction, abnormalities of energy generation, gastrointestinal abnormalities and abnormalities in the regulation of the immune system.
Yates’ medical malpractice trial illuminated how vaccines can cause autism in children with mitochondrial disorder and showed how the Vaccine Act — which is designed to ensure informed consent and compensation to injured children — is an abject failure because it’s largely unenforceable.
Yates was normal until he received his 12-month vaccines
During the first year of his life, Yates developed typically and met all of his developmental milestones.
“He was a happy, healthy and normal child,” his father said.
After his 6-month shots, Yates experienced a severe screaming episode approximately 24 hours after receiving the DTaP, Prevnar, Hib and Hep B vaccines.
In the days following his vaccinations, Yates began to experience seizure-like shaking episodes.
But his parents didn’t realize their son’s symptoms were consistent with a severe vaccine adverse reaction because they were not given a Vaccine Information Statement (VIS) at their pediatrician’s office.
According to the Centers for Disease Control and Prevention (CDC), a VIS is an information sheet produced by the CDC that explains both the benefits and risks of a vaccine to recipients.
“Federal law requires that healthcare staff provide a VIS to a patient, parent or legal representative before each dose of certain vaccines,” the CDC website states.
Instead of providing the VIS, Yates’ physician told his parents any adverse event to a vaccine would be “almost immediate” — within 5 to 15 minutes after vaccination.
Before Yates’ first birthday, his mother and aunt took him to the doctor because he had been sick, and his parents wanted to make sure it was okay for Yates to have a birthday party.
Hazlehurst told The Defender this appointment was not a scheduled well-child check. It was a sick visit. At the appointment, Yates was diagnosed with an ear infection and prescribed an antibiotic.
As the pediatrician turned to leave, he stated Yates would receive his shots, as it was close to his first birthday. A woman returned to the room who portrayed herself to be a nurse, but Hazlehurst later found out was only a medical assistant.
Yates’ mother asked the “nurse” whether their son should receive his shots despite being sick and was told he should.
Once again, they were not given a VIS form informing them of the risks of vaccinating Yates while he had a fever and an active ear infection.
“By administering vaccines to a sick child, the doctor and his clinic could charge a “modified double bill” Hazlehurst said.
That day, on Feb. 8, 2001, Yates received the MMR, Prevnar, Hib and Hep B vaccines. Twelve days later, Hazlehurst said his son experienced a high fever, rash and vomiting consistent with a vaccine adverse reaction.
Hazlehurst called the clinic where his son received his vaccine and talked to the doctor on call who asked him which vaccines Yates received. Hazlehurst responded, “whatever you get when you’re a year old.”
Hazlehurst was told his son was having an adverse reaction to the antibiotic and the doctor wrote him a prescription for a different antibiotic and an anti-fungal medication.
Soon after, Yates began to lose the skills he once had and began developing abnormally. He lost his speech, started running wild, was constantly on the go and would knock things off the table.
“He was visually ‘stimming’ off the falling objects and running with his head down for the visual stimulation,” Hazlehurst said.
He explained:
“It was not like he got the shots and boom, the next day he was autistic. That’s not the way it happened. The mitochondria produce the energy to the connecting tissue in the cells in the brain, and if they don’t get enough energy for a short period of time (as short as 6 seconds), cellular death occurs.
“The brain keeps developing, but it cannot develop normally because the connecting cellular tissue has been damaged. That’s why it takes time to manifest. It’s like watching grass grow. It’s happening, but you don’t realize it’s happening.”
Yates’ condition worsened. He developed an obsession with spinning objects, became a picky eater, started hand-flapping and toe-walking, became unable to sleep and exhibited gastrointestinal and multiple other medical and neurodevelopmental issues, Hazlehurst said.
On June 3, 2002, Yates was diagnosed with autism spectrum disorder.
Hazlehurst searches for answers to his son’s autism
According to federal law, there are specific recording requirements for vaccine medical records, and healthcare providers must provide records to a parent upon request.
Hazlehurst, on June 21, 2002, requested a copy of his son’s original vaccine records so other physicians could evaluate, diagnose and treat Yates.
Hazlehurst had questions about the American Academy of Pediatrics’ standard of care and wanted to know why his son was vaccinated while he was sick with a fever.
In response to Hazlehurst’s request and questions about Yates’ care, the pediatrician rushed out of the room and called his attorney, Hazlehurst said.
The doctor and clinic denied Hazlehurst’s requests to review and receive copies of his son’s original vaccine records, forcing him to petition the court for Yates’ records.
The court granted the request, and the local sheriff’s department seized Yates’ medical records from the doctor’s clinic.
Hazlehurst quickly realized there were problems with his son’s vaccine record, which was on an unsigned consent form that had a billing code sticker placed over the language regarding the risks and benefits of vaccines and vaccine information materials.
Hazlehurst said he never received a VIS form and Yates had been vaccinated without informed consent.
Hazlehurst files claim with the NVICP for son’s vaccine injury
Hazlehurst, like many parents of vaccine-injured children, pursued a claim with the NVICP as federal law requires. The process took nine years — from 2002 to 2011.
In order to bring a case in a court of law, the parents of a vaccine-injured child must first file their case with the NVICP.
The NVICP is a special, no-fault tribunal housed within the U.S. Court of Federal Claims that handles injury claims for 16 federally recommended vaccines. To date, the court has awarded more than $4 billion to thousands of people for vaccine injuries.
In the NVICP, America’s legal system is replaced by a “special master.” The special masters who review claims are government-appointed attorneys, many of whom are former U.S. Department of Justice (DOJ) attorneys.
Under the NVICP, the parents of vaccine-injured children are forced to sue the secretary of the U.S. Department of Health and Human Services (HHS) for compensation. HHS is represented by DOJ attorneys.
It is exceptionally difficult to obtain compensation within the NVICP, Hazlehurst said. The proceedings are often turned into drawn-out, contentious expert battles and the backlog of cases is substantial. Because of this, a single case can drag on for over a decade.
Payouts, including attorneys’ fees, are funded by a 75-cent tax per vaccine. There is a $250,000 cap on pain and suffering and death benefits.
The Vaccine Act established the NVICP, and the 2011 U.S. Supreme Court decision Bruesewitz et al v. Wyeth et al later guaranteed vaccine manufacturers, doctors and other vaccine administrators almost always have no legal accountability or financial liability in civil court when a government-recommended or mandated vaccine(s) causes permanent injury or death, Hazlehurst said.
The NVICP ultimately denied Yates’ claim, but his case against HHS became a central part of the U.S Supreme Court’s decision in Bruesewitz v. Wyeth.
Yates’ case in the NVICP was part of the Omnibus Autism Proceeding (OAP), in which 5,400 claims submitted to the NVICP were consolidated to determine if vaccines cause autism and if so, under what conditions.
“HHS whittled down the thousands of cases to six “test cases,” one of which was Yates’ case,” Hazlehurst said. “If HHS could find a way to deny NVICP compensation to the test cases, the agency would be able to deny compensation to all 5,400 families.”
Hazlehurst said HHS and the DOJ “took advantage of the fact that the rules of evidence, discovery and civil procedure mechanisms available in a regular court do not apply in the so-called vaccine court, and perpetrated fraud upon the special masters, the Court of Appeals for the D.C. Circuit and ultimately, the U.S. Supreme Court.”
The special masters on Feb. 12, 2009, in the so-called vaccine court, denied Yates’ petition for compensation and those of the five remaining OAP “test cases” involving children who developed autism after receiving their pediatric vaccines.
HHS makes key concession in Hannah Poling case
The potential fourth test case — Hannah Poling’s — was quietly conceded in 2007, in a corrupt coverup to conceal the opinion of the HHS expert witness, Dr. Andrew Zimmerman, the world’s leading expert in autism research, Hazlehurst said.
When Poling was 19 months old, she was vaccinated against nine diseases at one doctor’s visit: measles, mumps, rubella, polio, varicella, diphtheria, pertussis, tetanus and Haemophilus influenzae type b. In total, she received five vaccines.
Prior to receiving her vaccines, Poling was described as normal, happy, healthy, interactive, playful and communicative. But two days after being vaccinated, she was lethargic, irritable and febrile, and within 10 days she developed a rash consistent with vaccine-induced chicken pox.
Over the course of several months, Poling stopped eating, didn’t respond when spoken to, began showing signs of autism, developed neurological and psychological disorders and was diagnosed with encephalopathy caused by an underlying mitochondrial disorder.
In 2003, Poling’s father, Jon, a physician and trained neurologist, and mother, Terry, an attorney and nurse, filed an autism claim against HHS under the NVICP for their daughter’s injuries.
Five years later, the government settled the case before trial and in essence had it sealed.
During the OAP, in the Poling case, the government quietly conceded vaccines caused “regressive encephalopathy with features of autism spectrum disorder.”
According to CBS News, Poling received more than $1.5 million dollars for her life care, lost earnings and pain and suffering for the first year alone. After the first year, the family was supposed to receive more than $500,000 per year to pay for Poling’s care, which is estimated to amount to $40 million over her lifetime.
Jon Poling on March 6, 2008, said, “the results, in this case, may well signify a landmark decision with children developing autism following vaccinations.”
Prior to the Poling case, federal health agencies and professional organizations had reassured the public vaccines didn’t cause autism. The Poling case challenged that narrative, which is why the case was conceded and in essence sealed.
HHS’ concession that Poling developed autism as a result of a vaccine injury briefly became international news. Yet, only a handful of people knew why the government conceded Hannah’s case.
When news of the concession in Poling v. HHS was made public in March 2008, Dr. Julie Gerberding, then-director of the CDC, in an interview with CNN’s Dr. Sanjay Gupta said:
“We all know that vaccines can occasionally cause fevers in kids, so if a child was immunized, got a fever, had other complications from the vaccines, then if you are predisposed with a mitochondrial disorder, it can certainly set off some damage — some of the symptoms can be symptoms that have characteristics of autism.”
If HHS had not conceded her case, the truth as to how vaccines cause autism in some children with an underlying mitochondrial disorder would have been exposed by the world’s leading expert witnesses in the spotlight of the OAP, Hazlehurst said.
The concession document in the Poling case states:
“The vaccinations Hannah received on July 19, 2000, significantly aggravated an underlying mitochondrial disorder, which predisposed her to deficits in cellular energy metabolism, and manifested as a regressive encephalopathy with features of autism spectrum disorder.”
Zimmerman was an expert witness for the government defending vaccines in the NVICP. In 2007, during the hearing in the first test case, he told the government vaccines could cause autism in “exceptional” cases, but said the government later hid that information and misrepresented his expert opinion.
In a 2018 letter, Robert F. Kennedy, Jr., CHD chairman and chief legal counsel, and Hazlehurst meticulously described the DOJ’s fraud pertaining to the misrepresentation of Zimmerman’s opinions in the OAP and requested an investigation.
“The Office of Inspector General passed the buck to the DOJ Department of Ethics,” Hazlehurst said. “The DOJ investigated itself and wrote a highly misleading letter absolving itself of any wrongdoing.”
Zimmerman said in a signed affidavit:
“Shortly after I clarified my opinions with the DOJ attorneys, I was contacted by one of the junior DOJ attorneys and informed that I would no longer be needed as an expert witness on behalf of H.H.S. The telephone call … occurred after the above-referenced conversation on Friday, June 15, 2007, and before Monday, June 18, 2007. To the best of my recollection, I was scheduled to testify on behalf of H.H.S. on Monday, June 18, 2007.”
As a result of his firing, Zimmerman was not present for the Hazlehurst OAP proceedings, which allowed DOJ attorneys to misrepresent Zimmerman’s statements related to a separate autism case and apply them to all cases of autism, including Yates’ case.
Over the years Hazlehurst has repeatedly stated, “I want to be very clear, neither the Polings nor Dr. Zimmerman did anything wrong.”
“But,” he added, “if I did to a criminal, in a court of law, what the United States Department of Justice did to vaccine-injured children, I would be disbarred and I would be facing criminal charges.”
Zimmerman did testify as an expert witness on behalf of Yates in the medical malpractice case filed against Yates’ doctor, which was finally heard by a Tennessee court in February 2022.
Research by Zimmerman and others determined that at least 30%-40% of children with a diagnosis of regressive autism suffer from a mitochondrial disorder, which is a condition with which Yates was later diagnosed.
Yates in ‘perfect position’ to file lawsuit after exhausting remedies in NVICP
After exhausting all remedies under the NVICP — a process that took 25 years — the legal floodgates were then open, Hazlehurst said.
But because no one could sue the vaccine manufacturer, the only vaccine-injured child — out of thousands of cases originally included in the OAP — left with legal standing was Yates Hazlehurst and his claim of medical malpractice against the pediatrician who oversaw the administration of his vaccines.
Ultimately, the same medical experts, including Zimmerman and Dr. Richard Kelley, former director of the Genetics Department at Johns Hopkins Medical Institute — whose testimony HHS and the DOJ relied on in the Poling concession — concluded that what happened to Hannah Poling is what also happened to Yates Hazlehurst.
In an affidavit which was not admissible in the 2022 medical malpractice trial, Kelley stated:
“I also find, with a high degree of medical certainty, that the set of immunizations administered to Yates at 11 months while he was ill was the immediate cause of his autistic regression because of the effect of these immunizations to further impair the ability of his weakened mitochondria to supply adequate amounts of energy for the brain, the highest energy-consuming tissue in the body.”
Zimmerman’s expert opinion on the cause of Yates’ neurological condition was consistent with Kelley’s opinion.
Throughout the medical malpractice case, opposing counsel representing the pediatrician continuously echoed the CDC slogan, “vaccines do not cause autism.”
Hazlehurst said:
“In a medical malpractice case, the plaintiff has the burden of proof that the defendant deviated from the local “standard of care” or the defendant failed to obtain informed consent and that the deviation from the standard of care or failure to obtain informed consent caused the plaintiff’s injuries.
“The plaintiff must prove the standard of care, breach of the standard of care, the standard for informed consent and lack of informed consent through the testimony of an expert witness.”
“The issue of informed consent was hotly contested,” Hazlehurst added. “To a large degree, the trial was about whether and to what extent the federal laws applied at all to the standard of care.”
Yates’ father alleged the pediatrician deviated from the standard of care by administering vaccinations when his son had contraindications to being vaccinated.
Hazlehurst alleged the standard of care would include taking a sick baby’s temperature before administering vaccinations and believes the doctor failed to recognize that the “shaking episodes” as recorded in the medical records were consistent with a vaccine adverse reaction that should have been considered before further vaccinations were administered.
“Most people would be shocked if they witnessed the evidence presented by the defense to the jury as to just how low the requirements for informed consent and the standard of care are for the administration of childhood immunizations,” Hazlehurst said.
The defense experts testified the standard of care did not require taking a sick baby’s temperature before administering a vaccine, that he could be vaccinated even while ill and with an active bilateral ear infection, while on antibiotics and after suffering screaming and shaking episodes following previous vaccinations, he added.
The defense argued the local standard of care did not include following the CDC’s “Contraindication for Childhood Immunizations.”
Yates prohibited from presenting key expert witnesses
Medical malpractice cases are very difficult to win, and finding a pediatrician who is willing to testify in a vaccine injury case like Yates’ is extremely difficult, Hazlehurst said.
“Through the course of Yates’ long medical and legal journey, several doctors expressed that Yates should not have been vaccinated in his condition,” Hazlehurst told The Defender.
“However, they would not agree to testify. Most of the experts who refused to testify expressed fear of the negative professional consequences if they testified in an autism case,” he said.
Yates was also limited on the expert witnesses he could call due to Tennessee rules that determine which experts may testify about the local standard of care.
“These rules along with an extreme reluctance of pediatricians to testify in an autism case severely limited Yates’ ability to prevail,” Hazlehurst said.
Although Zimmerman was able to testify in Yates’ medical malpractice case, Kelley was not allowed to testify as to the standard of care and was not allowed to give an opinion as to how the defendant was negligent or why Yates should not have been vaccinated.
“The court granted an exception to allow Dr. Kelley’s causation testimony because his testimony was so highly specialized that another expert witness in the field of genetic metabolic disorders was obviously not available in Tennessee or a contiguous state, but his opinion as a pediatrician was not allowed,” Hazlehurst said.
Hazlehurst attempted to compel the CDC to allow whistleblower Dr. William Thompson, a senior scientist at the CDC, to testify in Yates’ case, but the agency prevailed and blocked Thompson from testifying.
Thompson in 2014 admitted to omitting “statistically significant information” in a 2004 study he co-authored with other CDC scientists that claimed the MMR vaccine does not cause autism.
But the omitted data suggested that a sub-group of males who received the MMR vaccine were at a significantly increased risk of autism.
“Decisions were made regarding which findings to report after the data were collected, and I believe that the final study protocol was not followed,” Thompson said in a statement.
“Any reference to Dr. William Thompson or the CDC whistleblower was later specifically excluded by the court in Yates’ medical malpractice trial,” Hazlehurst said.
“Likewise, the jury was not allowed to hear any reference to the concession in the Poling case and specifically the comments of Gerberding,” who in 2010 left the CDC and became the chief patient officer and executive vice president of Merck — the manufacturer of the MMR vaccine.
Due to the substantial length of time between the alleged malpractice and trial, several expert and fact witnesses passed away.
A critical fact witness and two doctors willing to testify on Yates’ behalf, passed away before trial. Two other doctors who initially gave sworn testimony as to negligence and causation backed out, leaving Yates without the experts needed to bolster his position.
The same was not true for the defendant, who had no difficulty finding expert witnesses to testify on his behalf, Hazlehurst said.
“The array of experts the defense called left little doubt as to the importance of this potentially precedent-setting case and raised the question of what forces were at play behind the scene,” he said.
“Yates was not just up against the local doctor and clinic, and David does not always beat Goliath,” Hazlehurst said.
The verdict in Yates’ medical malpractice case
At the end of the trial, the jury answered two questions based on the evidence it was allowed to consider and the instructions provided by the court.
Yates’ attorneys asked for a jury instruction quoting the language in the Vaccine Act that a VIS must be given to the parents of the child prior to the administration of a vaccine.
Although the judge originally approved the instruction prior to the start of the trial, the judge later reversed his decision and removed the critical instruction before jury deliberation, Hazlehurst said.
The first question the jury answered was, “Did the defendants provide the requisite information to Yates Hazlehurst’s parents to allow Yates Hazlehurst’s parents to formulate an intelligent and informed decision on authorizing or consenting to Yates Hazlehurst receiving his childhood immunizations on February 8, 2001?”
The jury answered, “yes.”
The second question the jury answered was, “Did the defendants deviate from the recognized standard of acceptable professional practice in this medical community or a similar medical community in his/their treatment of Plaintiff Yates Hazlehurst when administering vaccines to Yates Hazlehurst on February 8, 2001?”
The jury answered, “no.”
Although the jury never addressed the issue of whether a vaccine can cause neurological injury, including autism, valuable evidence was discovered and preserved during Yates’ legal battle.
The world’s top experts in the field of autism and mitochondrial disorder, on video, explained how the administration of “routine childhood immunizations” can cause autism, Hazlehurst told The Defender.
“These were the same medical experts who compelled HHS and DOJ to secretly concede the case of Hannah Poling during the OAP in the so-called vaccine court,” he said.
The trial exposed compelling evidence of the incredibly low standard of practice being taught to medical students and doctors and illuminates how the laws contained in the Vaccine Act — designed to ensure a patient receives informed consent — are unenforceable and largely meaningless, Hazlehurst said.
Many of the reasons Yates lost his case are the same reasons underlying the autism epidemic, he added.
Hazlehurst told The Defender he has sincere gratitude to everyone who has helped Yates over the past 20 years in both his medical and legal struggles.
“Regardless of the jury verdict, exposing the evidence which came to light in the legal cases of Yates Hazlehurst will be a powerful tool towards the ultimate goal of bringing the truth to light and ending the autism epidemic,” he said.
CHD and Hazlehurst said they will continue to fight for vaccine-injured children.
In the words of Winston Churchill, “Now is not the end. It is not even the beginning of the end. But it is, perhaps, the end of the beginning,” Hazlehurst said.
The views and opinions expressed in this article are those of the authors and do not necessarily reflect the views of Children's Health Defense.
Read more at: ChildrensHealthDefense.org
Please contact us for more information.
