Dobrydneva v. Secretary of Health & Human Services

94 Fed. Cl. 134, 2010 WL 3258317
CourtUnited States Court of Federal Claims
DecidedAugust 17, 2010
DocketNo. 04-1593V
StatusPublished
Cited by14 cases

This text of 94 Fed. Cl. 134 (Dobrydneva v. Secretary of Health & Human Services) is published on Counsel Stack Legal Research, covering United States Court of Federal Claims primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Dobrydneva v. Secretary of Health & Human Services, 94 Fed. Cl. 134, 2010 WL 3258317 (uscfc 2010).

Opinion

MEMORANDUM OPINION AND ORDER

SUSAN G. BRADEN, Judge.

On March 12, 2010, a Special Master of the United States Court of Federal Claims (“SM”) issued an Entitlement Decision under the National Childhood Vaccine Act of 1986, 42 U.S.C. §§ 300aa-10, et seq. (2000) (“the Vaccine Act”), denying Petitioners’ claim. See Dobrydneva ex rel. Dobrydnev v. Sec’y of Health and, Human Servs., 2010 WL 529422 (Fed.Cl. Mar. 12, 2010) {“Dobrydneva"). For the reasons discussed herein, the court remands this case to the Special Master for further proceedings. See Rule 27(c) of Appendix B: Vaccine Rules of the United States Court of Federal Claims.

I. RELEVANT FACTS.1

A. Petitioner’s Medical Records Prior To The November 5, 2001 Vaccination.

Ilya Dobrydnev was born on April 14, 1991 in Moscow, Russia, and came to the United States when he was 15 months old. TR at 30. During 1992 and 1993, Ilya received three doses of the hepatitis B vaccine.2 Pet. [137]*137Ex. 9(a) at 37. Ilya had no adverse reaction to any of these inoculations. Pet. Ex. 19 at 8.

In July 1996, Ilya’s mother reported in a kindergarten registration form that Ilya had “frequent colds,” a “frequent sore throat,” and “frequent ear infection[s].” Pet. Ex. 7 at 12-13.3 From October 1996 to October 2000, Ilya saw his pediatrician, Dr. Robert Fink, thirteen times for different complaints, including fever, sore throat, and weakness. Pet. Ex. 5 at 44-48; see also TR at 143-46.

In 2001, Ilya saw a pediatrician at Pediatric Specialists in Norfolk, Virginia, eight times for upper respiratory system issues. Pet. Ex. 5 at 40-44. On February 26, 2001, a physician associated with Pediatric Specialists observed and noted that Ilya was in the “convalescent phase” of a “recent [Epstein-Barr virus (‘EBV) ] infection.”4 Pet. Ex. 5 at 39. In January and February 2001, Ilya missed more than twenty days of school. Pet. Ex. 7 at 6. During the same period, a report by Dr. Randall Fisher, a pediatric infectious disease specialist at Children’s Hospital of the King’s Daughter (“Children’s Hospital”) in Norfolk, Virginia, indicated that Ilya experienced fatigue. Pet. Ex. 6 at 366; see also TR at 73.

In March 2001, Ilya was examined by Dr. Thomas Rubio of the Pediatric Infectious Disease Clinic of the Children’s Hospital. Pet. Ex. 6 at 359. Ilya’s mother informed Dr. Rubio that Ilya was very weak and could not walk. Id. at 358. When Ilya’s mother was advised of the need to perform medical procedures, however, Ilya appeared to have “ ‘recovered’ all his strength” and “was able to walk normally, jump, and had normal strength in his lower extremities.” Id. Nevertheless, Dr. Rubio noted: “I believe that this child is still suffering from some sort of psychological maladjustment perhaps with some fatigue. However, he appear[s] to be safe from suffering from a definite neurological syndrome.” Id.

In April 2001, Ilya returned to school. Pet. Ex. 7 at 6. On April 23, 2001, Ilya saw Dr. Fink for a sore throat, fever, and fatigue. Pet. Ex. 5 at 38. Dr. Fink diagnosed Ilya as having a probable viral illness, but not mononucleosis. TR at 182. Dr. Fink concluded that Ilya was cured of mononucleosis by April or May 2001.5 TR at 149; see also id. at 259.

On May 25, 2001, Ilya’s mother called Dr. Fink to report that Ilya was suffering from a fever, headache, white patches on his throat, and hallucinations. Pet. Ex. 5 at 38. Dr. Fink recommended that Ilya be admitted to a hospital. Pet. Ex. 5 at 38. Ilya’s mother decided not to take him to the hospital, but treated him with “leftover” Cefzii™6 from [138]*138one to two months earlier. Pet. Ex. 5 at 38. On May 30, 2001, Dr. Fink examined Ilya, but warned Ms. Dobrydneva that he had “difficulty making a diagnosis with her self-medicating[.]” Pet. Ex. 5 at 38.

[137]*137Hepatitis B Vaccination Records for Ilya Dobrydnev

Source Dr. Robert Fink School Records & Virginia Health Department Dr. Robert Lehman

Citation Ex. 7 at 17 (dated Jan. 7, 1997) Ex. 7 at 15; Ex. Ex. 9 at 3. 9(a) at 37.

First Dose 9/25/92 9/25/92 11/6/92

Second Dose 11/6/92 11/6/92 8/6/93

Third Dose 8/6/92 * [sic] 8/6/93 "■Should be 8/6/93.

Dr. Lehman s records appear to be the most thorough and accurate. See Pet. Ex. 9(a) at 37 (Dr. Lehman’s records including vaccination lot numbers).

[138]*138On June 6, 2001, Ilya was seen for a three-day low grade fever and fatigue. Pet. Ex. 5 at 37. On June 7, 2001, Ilya had blood tests performed. Pet. Ex. 6 at 351. Titers7 for EBV were 37 arbitrary units (“AU”). Id. The “EBV Interpretation Chart” indicates that any value exceeding 20 AU is positive for acute infection. Id. Dr. Fink observed that this could have been persistent EBV, but this diagnosis was not confirmed. Pet. Ex. 5 at 37; TR at 717. The test also could have simply reflected a recurrence of EBV. Pet. Ex. 5 at 37.

On July 2, 2001, Dr. Fink was informed that Ilya was “fatigued again. At times he has [had] to be carried around.” Pet. Ex. 5 at 37. Dr. Fink did not observe fatigue, but referred Ilya to Dr. Cynthia Kelly, an allergist/immunologist at Children’s Hospital for further testing. TR at 184-85.

On July 23, 2001, Ilya saw Dr. Kelly. Pet. Ex. 6 at 841. Dr. Kelly reported that Ilya’s mother told her that “Ilya has been sick with infectious mononucleosis since December.” Id. As a result, Dr. Kelly recommended that blood tests be taken. Id. at 342. Ilya’s mother objected. Id.; see also TR at 186-87.

During the summer of 2001, Ilya attended a summer camp for academically gifted children where he played tennis and swam. TR at 40-41.

In the fall of 2001, Ilya started the fifth grade. TR at 43. From October 1 to October 4, 2001, Ilya was absent from school. Pet. Ex. 7 at 5.

B. Petitioner’s Medical Records Following The November 5, 2001 Vaccination.

On November 5, 2001, Ilya received a fourth dose of the hepatitis B vaccine. Pet. Ex. 9 at 3. Thereafter, according to Ilya’s mother, he experienced malaise, fever, sore throat, lymph node swelling, and marked pallor. TR at 47; Pet. Ex. 3 at 1-2. Ilya missed school on November 6 and 7, 2001. Pet. Ex. 7 at 5; TR at 47.

On November 19, 2001, Ilya saw Dr. Fink for a “2-3 day history of low grade temperature elevation along with a sore throat,” and “some degree of nasal congestion with minimal cough.” Pet. Ex. 5 at 36. Dr. Fink diagnosed Ilya as having “febrile illness/viral pharyngitis.” Id.

By November 26, 2001, Ilya had a yellow nasal discharge and a frontal headache. Id. Dr. Fink’s diagnosis was sinusitis and Augmentin™8 500 was prescribed for 10 days. Id.; see also TR at 189-90.9

On November 29, 2001, Ilya was diagnosed with a sore throat. Pet. Ex. 5 at 35.

On November 30, 2001, Ilya experienced severe dizziness and nausea. Pet. Ex.

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