Keith v. Secretary of the Department of Health & Human Services

55 Fed. Cl. 791, 2003 U.S. Claims LEXIS 86, 2003 WL 1872937
CourtUnited States Court of Federal Claims
DecidedMarch 25, 2003
DocketNo. 00-273V
StatusPublished
Cited by3 cases

This text of 55 Fed. Cl. 791 (Keith v. Secretary of the Department 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
Keith v. Secretary of the Department of Health & Human Services, 55 Fed. Cl. 791, 2003 U.S. Claims LEXIS 86, 2003 WL 1872937 (uscfc 2003).

Opinion

OPINION

BASKIR, Judge.

Debra Kay Keith filed a petition in May 2000 seeking compensation under the National Vaccine Injury Compensation Program (Program), 42 U.S.C. §§ 300aa-10-34 (1994). She alleged that Tetanus shots she received in 1997 and 1998 caused her to contract Brachial Neuritis and aggravated her preexisting brain stem defect, a Chiari I malformation. While Ms. Keith presented thorough records documenting her symptoms and doctors’ evaluations, this evidence did not itself show that she had Brachial Neuritis or that the vaccination caused an aggravation of her brain stem defect. Ms. Keith lacked any medical expert opinion to substantiate her claims.

In late 2002, the Respondent filed a second Motion to Dismiss, alleging that the Petitioner had insufficient proof to make out a prima facie case of injury or causation in fact. The Respondent also alleged that the Petitioner had failed to comply with numerous orders requiring her to present an expert medical opinion, even after Special Master E. LaVon French granted her several extensions of time. Concluding there was insufficient evidence of causation and no medical expert opinion provided by the Petitioner to cure this defect, the Special Master found that the Petitioner had not met her burden of proof and was not entitled to compensation under the Program. Thus, the Special Master granted the Respondent’s motion in October 2002.

The Petitioner filed her appeal of the Special Master’s dismissal on October 30, 2002, alleging that she presented sufficient proof of causation in the form of medical records and her own opinions. However, unsubstantiated claims of a petitioner, without more, do not entitle a person to compensation. While the Court does not dispute the nature or severity of her symptoms, Ms. Keith has presented no basis for overturning the Special Master’s decision. After examining the entire record before us and hearing the parties, we deny the petition and affirm the decision of the Special Master.

PROCEDURAL NOTE

Ms. Keith filed her petition below pro se. From September 2001 to November 2002, she was represented by counsel. After Ms. Keith filed her appeal, counsel withdrew from the case. Thus, because of Ms. Keith’s pro se status, we will liberally interpret her petition for review. See Forshey v. Principi, 284 F.3d 1335, 1357-58 (Fed.Cir.2002) (en banc).

FACTS

Ms. Keith first contends that her vaccinations caused Brachial Neuritis, one of the injuries listed in the Vaccine Injury Table. However, while her records indicate that she suffered symptoms similar to those associated with Brachial Neuritis, she has no medical [793]*793evidence establishing the cause of these symptoms. Second, Ms. Keith contends that the vaccinations aggravated her pre-existing Chiari I malformation. However, a review of her medical records fails to establish that the vaccination was a cause in fact of the aggravation, or that an aggravation occurred at all. Thus, as we shall see, while Ms. Keith has a long history of suffering from troublesome symptoms, she has not presented sufficient evidence to establish the vaccinations as a cause of any of them.

The following facts derive from Ms. Keith’s medical records and her personal interpretation of them, which are undisputed by the Respondent.

Ms. Keith received three Tuberculin (PPD) skin tests in 1977, 1985 and 1990. In May 1997, she received her first Tetanus (Td) vaccination. Two months later, Ms. Keith began to have chilling sensations in the back of her neck and head, swelling of the head, and muffled hearing. These symptoms lasted for nine or ten days and were accompanied by severe headaches, stiff neck, and sharp shooting pains in her neck and head. Petitioner contends that for the next two months, she experienced muscle spasms, severe body soreness, exhaustion, and various other problems.

By late 1997, these symptoms began to fade. However, shortly thereafter, new ones manifested including vision and hearing difficulties, bowel disturbances, and tingling sensations throughout the entire left side of the body.

Ms. Keith went through several medical tests to determine the cause of her illness. In early 1998, she visited a neurologist, Dr. Lovegildo Garcia, who took a series of blood tests for more than 15 illnesses. Dr. Garcia’s initial impression was that the Petitioner had a right brain disorder, seizure disorder, or even some sort of psychophysiologic condition. On a follow-up visit, Dr. Garcia noted that Petitioner’s blood tests were essentially normal, except for certain slight elevations. He recommended that she see a rheumatologist to test for collagen disease or lupus, which can present tingling sensations on one side of the body. He also suggested that she obtain an MRI (Magnetic Resonance Imaging) of her brain and spine and a DopScan of her neck vessels, which the Petitioner indicated she would have to delay because of the expense of such tests.

During this period, Ms. Keith visited an ear doctor for a recurring hearing problem she believed was diagnosed and treated in 1990. Hearing tests and a CT (Computed Tomography) scan did not reveal anything abnormal, except a slight left-sided hearing loss. Around the same time, Ms. Keith was also being treated by a chiropractor for back problems.

In March 1998, Ms. Keith returned to Dr. Garcia and complained that she continued to experience numbness on the left side of her body and constant severe headaches. Ms. Keith mentioned having read that some of her symptoms, including muscle spasms and back/neck pain, could have been due to a tetanus infection. Dr. Garcia explained that even if she had a mild tetanus infection, it is very unusual to survive such an infection for so long without antibiotic treatments. He then spoke with Dr. Anna Wong of the Infectious Disease Center in Louisville, Kentucky, who felt it was possible that the Petitioner had an infection and had since recovered, but that a continuous infection is unusual without any other accompanying signs of infection. There was no evidence of an acute infection since her white blood cell count was normal. Dr. Wong recommended that the Petitioner complete the whole tetanus immunization and submit to more blood tests. Dr. Garcia again recommended an MRI of her brain and spine.

The Petitioner had her second tetanus vaccination in April 1998. Three weeks later, she had a similar reaction to the previous one, only not as intense or enduring. Her symptoms included swelling sensations in the head, aching muscles, and muffled hearing. Ms. Keith went to the emergency room, at which time she asked for a tetanus antibody test. The doctor on duty diagnosed the Petitioner with a muscle tension headache. According to the doctor’s report, this condition is caused by tightness in the neck and head muscles resulting from neck or jaw joint problems, and more commonly, emotional [794]*794stress. The doctor stated that he found no evidence of a serious health problem as a cause for the headache. He gave her a prescription for a benzodiazepine medication (examples include Valium, Xanax, and Librium) and told her to follow up with her neurologist.

Ms.

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55 Fed. Cl. 791, 2003 U.S. Claims LEXIS 86, 2003 WL 1872937, Counsel Stack Legal Research, https://law.counselstack.com/opinion/keith-v-secretary-of-the-department-of-health-human-services-uscfc-2003.