Bitsui v. Secretary of Health and Human Services ( 2017 )

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 11-749V
Filed: December 7, 2016
* * * * * * * * * * * * * * *
JESSICA NICOLE BITSUI, as parent *
and natural guardian of N.H., a minor, *
* Dismissal; Gardasil (“HPV”)
Petitioner, * Vaccine; VACTERYL Association.
*
v. *
*
SECRETARY OF HEALTH *
AND HUMAN SERVICES *
*
Respondent. *
* * * * * * * * * * * * * * *
DECISION1
Roth, Special Master:
On November 8, 2011, petitioner filed a petition for Vaccine Compensation in the National
Vaccine Injury Compensation Program (“the Program”)2 on behalf of her minor child, N.H.
Petitioner alleged that a Gardasil vaccination that she received while pregnant with N.H. caused
her child to develop a tracheoesophageal fistula, imperforate anus, and tethered spinal cord,
collectively known as VACTERYL association. The information in the record, however, does not
show entitlement to an award under the Program. On December 7, 2016 petitioner filed a “motion
for decision dismissing the petition” requesting that her case be dismissed. ECF No. 105.
1
Because this unpublished decision contains a reasoned explanation for the action in this case, I
intend to post this decision on the United States Court of Federal Claims' website, in accordance
with the E-Government Act of 2002, Pub. L. No. 107-347, § 205, 116 Stat. 2899, 2913 (codified
as amended at 44 U.S.C. § 3501 note (2012)). In accordance with Vaccine Rule 18(b), petitioner
have 14 days to identify and move to delete medical or other information, that satisfies the
criteria in § 300aa-12(d)(4)(B). Further, consistent with the rule requirement, a motion for
redaction must include a proposed redacted decision. If, upon review, I agree that the identified
material fits within the requirements of that provision, I will delete such material from public
access.
2
The Program comprises Part 2 of the National Childhood Vaccine Injury Act of 1986, Pub. L.
No. 99-660, 100 Stat. 3755, codified as amended, 42 U.S.C. §§ 300aa-10 et seq. (hereinafter
“Vaccine Act” or “the Act”). Hereafter, individual section references will be to 42 U.S.C. §
300aa of the Act.
1
To receive compensation under the Program, a petitioner must prove either 1) that he
suffered a “Table Injury” – i.e., an injury falling within the Vaccine Injury Table – corresponding
to his vaccination, or 2) that he suffered an injury that was actually caused by a vaccine. See §§
13(a)(1)(A) and 11(c)(1). An examination of the record did not uncover any evidence that N.H.
suffered a “Table Injury.” Further, the record does not contain persuasive evidence indicating
that N.H.’s alleged injury was vaccine-caused or in any way vaccine-related.
Under the Act, a petitioner may not be given a Program award based solely on the
petitioner’s claims alone. Rather, the petition must be supported by either medical records or by
the opinion of a competent physician. § 13(a)(1). In this case, because there are insufficient
medical records supporting petitioner’s claim, a medical opinion must be offered in support.
Petitioner, however, has offered no such opinion that supports a finding of entitlement.
Accordingly, it is clear from the record in this case that petitioner has failed to
demonstrate either that N.H. suffered a “Table Injury” or that N.H.’s injuries were “actually
caused” by a vaccination. Thus, this case is dismissed for insufficient proof. The Clerk shall
enter judgment accordingly.
IT IS SO ORDERED.
s/Mindy Michaels Roth
Mindy Michaels Roth
Special Master
2