Diksha Batish v. Secretary of Health and Human Services

In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS No. 09-221V Filed: January 9, 2014

*************************** NOT TO BE PUBLISHED DIKSHA BATISH, *

* Special Master * Hamilton-Fieldman *

Petitioner, * Petitioner’s Motion for Ruling on the v. * Record; Insufficient Proof of Causation;

* Vaccine Act Entitlement; Denial Without SECRETARY OF HEALTH * Hearing.

AND HUMAN SERVICES, *

* Respondent. *

*************************** Thomas Gallagher, Somers Point, NJ, for Petitioner.

Alexis Babcock, Washington, DC, for Respondent.

DECISION1

On April 14, 2009, Meena Sharma and Sat Dev Batish (“Petitioners”) filed a petition on behalf of their daughter Diksha Batish for compensation under the National Vaccine Injury Compensation Program (“the Program”), 42 U.S.C. §300aa-10, et seq. (2006), 2 alleging that their daughter suffered from acute myopathy as a result of receiving the Tetanus booster and Menactra (Meningitis) vaccinations on April 14, 2006. Petition (“Pet.”) at 1, ECF No. 1.3 During the pendency of this case, Diksha Batish reached the age of majority and as such the case was re-captioned listing her as the sole Petitioner. Motion, ECF No. 76; Order, ECF No. 77. The information in the record does not show entitlement to an award under the Program.

On January 9, 2014, Petitioner moved for a decision dismissing her petition, acknowledging that insufficient evidence exists to demonstrate entitlement to compensation.

To receive compensation under the Program, Petitioner must prove either 1) that Diksha suffered a “Table Injury”-i.e., an injury falling within the Vaccine Injury Table- corresponding to one of Diksha’s vaccinations, or 2) that Diksha 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 Diksha suffered a “Table Injury.” Further, the record does not contain a medical expert’s opinion or any other persuasive evidence indicating that Diksha’s alleged injury was vaccine-caused.

Under the Act, 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.

Accordingly, it is clear from the record in this case that Petitioner has failed to demonstrate either that Diksha suffered a “Table Injury” or that Diksha’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/ Lisa D. Hamilton-Fieldman Lisa D. Hamilton-Fieldman Special Master