Zohreh Gerami, a Married Woman v. Secretary of Health and Human Services

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
*********************
ZOHREH GERAMI, *
A Married Woman, *
* No. 12-442V
Petitioner, * Special Master Christian J. Moran
*
v. * Filed: October 11, 2013
*
SECRETARY OF HEALTH * Decision dismissing case;
AND HUMAN SERVICES, * six-month requirement;
* insufficient proof.
Respondent. *
*********************
Cyrus Meshki, Law Offices of Cyrus Meshki, APC, Los Angeles, CA, for
petitioner.
Darryl R. Wishard, United States Dep’t of Justice, Washington, DC, for
respondent.
UNPUBLISHED DECISION DENYING COMPENSATION1
Zohreh Gerami filed a petition under the National Childhood Vaccine Injury
Act, 42 U.S.C. §300aa—10 et seq. (the “Vaccine Act” or “Program”), on July 13,
2012. Ms. Gerami alleged that she suffered an adverse reaction, including skin
irritation, severe rash, cellulitis, insomnia, depression, and lingering skin scars,
resulting from the receipt of a diphtheria-pertussis-tetanus (“DPT”) vaccine she
received on November 27, 2011. The information in the record, however, does not
show entitlement to an award under the Program.
1
The E-Government Act of 2002, Pub. L. No. 107-347, 116 Stat. 2899, 2913
(Dec. 17, 2002), requires that the Court post this ruling on its website. Pursuant to
Vaccine Rule 18(b), the parties have 14 days to file a motion proposing redaction of
medical information or other information described in 42 U.S.C. § 300aa—12(d)(4). Any
redactions ordered by the special master will appear in the document posted on the
website.
I. Procedural History
On November 1, 2012, petitioner filed a restated claim for damages as well
as exhibits 1-7.2 On November 2, 2012, respondent filed a status report in which
she stated that petitioner had not filed the supporting documentation required under
the Act. Respondent requested that petitioner file several sets of medical records.
Specifically, respondent requested “[p]roof that petitioner’s alleged vaccine injury
lasted for more than 6 months.”
On November 15, 2012, petitioner filed exhibits 8 and 9 (petitioner’s
affidavit). In her affidavit, petitioner asserted that her vaccine-caused injuries
persisted for more than six months. Exhibit 9 at ¶ 7. On November 27, 2012,
petitioner filed exhibit 10, a two page letter from Dr. Houshang Naimi dated
November 27, 2012 and containing a summary of petitioner’s post-vaccination
medical history. A status conference was held on November 28, 2012. During the
status conference, respondent requested that petitioner file complete post-
vaccination records and not merely a summary of her medical history since the
date of her vaccination. On November 29, 2012, petitioner was ordered to file
those records requested by respondent in her November 2, 2012 status report.
Petitioner filed exhibits 11-13 on January 8, 2013. On January 9, 2013,
respondent filed another status report. In her report, respondent again asserted that
petitioner had “not met the requirements under the Vaccine Act for filing
supporting documentation for her petition.” Respondent noted that exhibit 13 was
an exact duplicate of exhibit 10 (Dr. Naimi’s summary of Ms. Gerami’s medical
history), and thus was insufficient proof that petitioner’s alleged vaccine-caused
condition persisted for more than six months after her vaccination.
Another status conference was held on February 1, 2013. During the status
conference, petitioner was strongly encouraged to file a motion for authorization to
2
The principal difference between the petition and petitioner’s restated claim for
damages concerns attorney fees and costs. Compare Petition, with [Restated] Claim for
Damages under Statutory Vaccination Program. The injuries alleged and the allegedly
causal vaccine are identical in both pleadings. Id.
2
serve a subpoena on Dr. Naimi to obtain records related to his treatment of Ms.
Gerami.3 See order, issued Feb. 2, 2013.
On March 4, 2013, petitioner filed exhibit 14. A status conference was held
on April 12, 2013. During the status conference, respondent stated that the record
was sufficiently complete for her to file a Rule 4(c) report. See order, issued Apr.
12, 2013.
Respondent filed her Rule 4 report on May 10, 2013. In her report,
respondent asserted that petitioner had failed to meet “the six-month residual
effects requirement for a vaccine-related injury under the Act.” Resp’t Rep’t at 6
(citing 42 U.S.C. § 300aa—11(c)(1)(D)). Respondent noted that Ms. Gerami
apparently suffered from cellulitis at the injection site, but that the “last recorded
complaints regarding her arm were on February 15, 2012 – less than three months
after vaccination.” Resp’t Rep’t at 7-8. Respondent added that petitioner’s claims
of anxiety and/or depression lasting for more than six months were not supported
by the records filed. Id. at 7. Further, respondent noted Ms. Gerami’s apparent
“periodic nervousness and anxiety before vaccination.” Id. at 8.
On May 30, 2013, during a status conference, petitioner agreed to file a
response to respondent’s Rule 4 report, identifying the medical records that support
satisfaction of the Act’s six-month requirement. See order, issued May 31, 2013.
On June 25, 2013, petitioner filed a letter from Dr. Naimi (exhibit 15). Dr. Naimi
stated that Ms. Gerami’s injection-site symptoms “persisted over 6 months, and
started fading away over 6 months,” and that “her psychological problems (anxiety
disorder) lasted almost a year.”
Another status conference was held on July 16, 2013. During the status
conference, respondent stated that Dr. Naimi’s letter did not satisfy her concerns.
Specifically, respondent noted that Dr. Naimi did not refer to any medical records
to support his statements. See order, issued July 18, 2013. Noting that she had no
additional documents to file, petitioner requested a ruling on the record. See id.
On July 18, 2013, respondent filed a status report in which she concurred
with petitioner regarding the appropriateness of a ruling on the record. Although
respondent discussed causation in her Rule 4 report, she requested that a ruling be
3
To date, petitioner has not requested authorization to serve a subpoena on Dr.
Naimi.
3
limited to the issue of whether petitioner has demonstrated that she suffered an
injury lasting more than six months. Resp’t Status Rep’t, filed July 18, 2013. Also
on July 18, 2013, in anticipation of a ruling on the record, the parties were ordered
to file any additional materials or information they wished to be considered by
August 16, 2013. Neither party filed any additional material. This case is now
ready for disposition.
II. Ms. Gerami’s Relevant Medical History
On November 27, 2011, Ms. Gerami received a DPT vaccination at a Rite
Aid in San Rafael, California. Exhibit 11; exhibit 12 at 2. On November 30, 2011,
Ms. Gerami presented to Marin General Hospital’s Emergency Department
complaining of right arm pain. Exhibit 12 at 2.4 The attending physician, Dr.
Tami Gash-Kim, assessed Ms. Gerami as having “[r]ight upper extremity
cellulitis,” which the doctor attributed to Ms. Gerami’s DPT immunization. Id. at
3. Dr. Gash-Kim added that the infection did “not appear to be allergic in nature.”
Id. A blood culture was negative. Id. at 1, 4-5. Ms. Gerami was discharged from
the hospital on December 1, 2011. Id. at 3. She was instructed to return in 24
hours for a repeat evaluation. Id.
On December 2, 2011, Ms. Gerami returned to the hospital, complaining of
local itching. Id. at 1. The doctor’s impression was “[l]ocal reaction to vaccine
versus cellulitis.” Id. Less than an hour after her admittance, Ms. Gerami was
discharged “in satisfactory stable condition” and instructed to seek reexamination
“if high fever, shaking chills, vomiting or other systemic symptoms” manifested.
Id.
On February 15, 2012, Ms. Gerami was seen by her primary care physician,
Dr. Naimi. Exhibit 14.1 at 40-41. Dr. Naimi noted Ms. Gerami’s restlessness,
anxiety, muscular tension, tachycardia, and fatigue. Id. He also noted Ms.
Gerami’s arm redness. Id. at 41.
In a progress note from April 19, 2012, it was noted that Ms. Gerami had
stopped smoking, but no mention was made of the persistence of symptoms of the
alleged injury. Id. at 32.
4
Some of petitioner’s exhibits, including exhibit 12, were not paginated. Citations
to exhibits without page numbers are made to the page number of the PDF filed.
4
On November 21, 2012, Ms. Gerami was seen for a physical. Id. at 42. At
that time, she had no complaints. Id. A recording of her past medical history
included herpes zoster (May 10, 2012), post-vaccination cellulitis (November 30,
2011), and a breast nodule excision (May 12, 2012). Id. Although questions of
hypertension and hyperthyroidism were raised, no mention was made of symptoms
of the alleged injury. Id. at 42-43.
A letter from Dr. Naimi, dated November 27, 2012, summarized Ms.
Gerami’s 2011-2012 medical history. Exhibit 10 at 1-2. Dr. Naimi mentioned Ms.
Gerami’s 2012 treatments for herpes zoster and a benign nodule in her left breast.
Id. at 1. Additionally, he noted petitioner’s February 15, 2012 complaint of
“anxiety due to a vaccination in California.” Id. Dr. Naimi added that Ms. Gerami
“had been suffering from insomnia, restlessness, and irritability” since her
vaccination. Id. Finally, concerning Ms. Gerami’s November 21, 2012 “complete
major physical examination,” Dr. Naimi noted Ms. Gerami’s blood pressure of
130/70 and her normal blood chemistry and urine analysis. Id. at 2. He added,
“[n]o other findings.” Id.
A progress note from January 7, 2013, includes the notation that Ms. Gerami
“does not take meds.” Exhibit 14.1 at 34. No mention was made of symptoms of
the alleged injury. Id.
III. Analysis
Under the Vaccine Act, a petition for compensation must contain
“supporting documentation, demonstrating that the person who suffered [a vaccine
related injury] . . . suffered the residual effects or complications of such illness,
disability, injury, or condition for more than 6 months after the administration of
the vaccine.” 42 U.S.C. § 300aa—11(c)(1)(D)(i). The burden of establishing, by a
preponderance of the evidence, the persistence of a vaccine-caused injury for
longer than six months is borne by petitioners. Song v. Sec’y of Health & Human
Servs., 31 Fed. Cl. 61, 65-66, aff’d, 41 F.3d 1520 (Fed. Cir. 1994).
Petitioner asserted that she experienced “severe skin irritation, rash,
insomnia, and depression,” as well as scars due to her November 27, 2011 DTP
vaccination, and that these symptoms persisted for “nearly seven (7) months.”
Exhibit 9 at ¶¶ 2-3, 7. She added that she continues to “suffer from the residual
lingering effects of skin anomaly.” Id. at ¶ 7. Respondent contended, however,
that “[t]here are no records or medical opinions to support this allegation.” Resp’t
Rep’t at 5.
5
A review of petitioner’s medical records reveals no support for her claim
that her allegedly vaccine-caused injuries persisted for longer than six months.
Under the Vaccine Act, the residual effects of such injuries must have persisted
beyond May 27, 2012, six months after Ms. Gerami’s November 27, 2011
vaccination. Ms. Gerami suffered cellulitis at the injection site shortly after
receiving the DTP vaccination. Exhibit 12 at 2. The last recorded symptom
related to this condition (redness of the arm), however, was noted by Dr. Naimi on
February 15, 2012, less than three months after Ms. Gerami’s vaccination. Exhibit
14.1 at 41.
Petitioner has offered no persuasive medical opinion to support her claim.
In his letter of November 27, 2012, Dr. Naimi noted Ms. Gerami’s February 15,
2012 complaint of anxiety due to her vaccination. 5 Exhibit 10 at 1. Dr. Naimi,
however, did not cite any medical record evidencing the persistence of petitioner’s
alleged vaccine injuries beyond the required six-month period.
When ordered to file a status report identifying the medical records
supporting the satisfaction of the Act’s six-month requirement, petitioner filed
another letter from Dr. Naimi. Although Dr. Naimi stated that Ms. Gerami’s
vaccine-related injuries persisted for over six months, the letter is significant for its
absence of citations to petitioner’s medical records.6 See exhibit 15. In a status
conference held on July 16, 2013, respondent noted the absence of citations and
stated that Dr. Naimi’s letter did not satisfy her concerns. See order, issued July
18, 2013. Thereafter, petitioner was afforded the opportunity to file any additional
materials or information she wished to be considered in anticipation of a ruling
5
Ms. Gerami’s records indicate that she suffered from anxiety prior to her
vaccination. See, e.g., Exhibit 14.1 at 31 (“Presents with [a]nxiety disorder” on May 12,
2008). She has not claimed that her vaccination significantly aggravated her anxiety.
6
Although statements from treating physicians can be probative, Capizzano v.
Sec’y of Health & Human Servs., 440 F.3d 1317, 1326 (Fed. Cir. 2006) (citing Althen v.
Sec’y of Health & Human Servs., 418 F.3d 1274, 1278 (Fed. Cir. 2005)), such statements
are not binding on special masters. See 42 U.S.C. § 300aa—13(b)(1); see also
Broekelschen v. Sec’y of Health & Human Servs., 618 F.3d 1339, 1346-49 (Fed. Cir.
2010) (affirming the special master’s finding that the petitioner suffered from one disease
even though the petitioner’s treating doctor had diagnosed the petitioner with a different
disease).
6
concerning the Act’s six-month requirement. Petitioner filed no additional
documentation.
IV. Conclusion
Based on the record as a whole, petitioner has failed to prove by
preponderant evidence that her allegedly vaccine-caused injuries persisted for
longer than six months, as required by the Vaccine Act. Thus, this case is
dismissed for insufficient proof. The Clerk shall enter judgment accordingly.
IT IS SO ORDERED.
s/Christian J. Moran
Christian J. Moran
Special Master
7