To v. Secretary of Health and Human Services

In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 18-506V UNPUBLISHED

BICH NGOC TO, Chief Special Master Corcoran Petitioner, Filed: September 28, 2020 v. Special Processing Unit (SPU); SECRETARY OF HEALTH AND Damages Decision Based on Proffer; HUMAN SERVICES, Tetanus Diphtheria acellular Pertussis (Tdap) Vaccine; Shoulder Respondent. Injury Related to Vaccine Administration (SIRVA)

Hoa Xuan Manh, Charles H. Manh, P.C., Westminster, CA, for petitioner.

Camille Michelle Collett, U.S. Department of Justice, Washington, DC, for respondent.

DECISION AWARDING DAMAGES1 On April 6, 2018, Bich Ngoc To filed a petition for compensation under the National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq.2 (the “Vaccine Act”). Petitioner alleges that she suffered a right shoulder injury as a result of a tetanus- diphtheria-acellular pertussis (“Tdap”) vaccine administered on April 28, 2017. Petition at 2, 5. The case was assigned to the Special Processing Unit of the Office of Special Masters.

On April 3, 2020, a ruling on entitlement was issued, finding Petitioner entitled to compensation for a shoulder injury related to vaccine administration. On September 25, 2020, Respondent filed a proffer on award of compensation (“Proffer”) indicating Petitioner should be awarded $147,815.81. Proffer at 1-2. In the Proffer, Respondent Because this unpublished decision contains a reasoned explanation for the action in this case, I am required to post it on the United States Court of Federal Claims' website in accordance with the E- Government Act of 2002. 44 U.S.C. § 3501 note (2012) (Federal Management and Promotion of Electronic Government Services). This means the decision will be available to anyone with access to the internet. In accordance with Vaccine Rule 18(b), Petitioner has 14 days to identify and move to redact medical or other information, the disclosure of which would constitute an unwarranted invasion of privacy.

If, upon review, I agree that the identified material fits within this definition, I will redact such material from public access.

Pursuant to the terms stated in the attached Proffer, I award Petitioner the following: • A lump sum payment of $140,604.50 (representing compensation in the amount of $115,000.00 in pain and suffering, and $25,604.50 in future unreimbursable medical expenses, reduced to net present value) in the form of a check payable to Petitioner. This amount represents compensation for all damages that would be available under § 15(a).

• A lump sum payment of $7,211.31, representing compensation for satisfaction of the State of California Medi-Cal lien, payable jointly to Petitioner and to: State of California—Health and Human Services Department of Health Care Services Recovery Branch – MS 4720 PO Box 997421 Sacramento, CA 95899-7421 DHCS account number: C95607513D-VAC03 Petitioner agrees to endorse this payment to the Medi-Cal program.

The clerk of the court is directed to enter judgment in accordance with this decision.3 IT IS SO ORDERED.

s/Brian H. Corcoran Brian H. Corcoran Chief Special Master

IN THE UNITED STATES COURT OF FEDERAL CLAIMS OFFICE OF SPECIAL MASTERS BICH NGOC TO, ) ) Petitioner, ) No. 18-506V ) Chief Special Master v. ) Brian Corcoran ) ECF ) SECRETARY OF HEALTH ) AND HUMAN SERVICES, ) ) Respondent. ) )

RESPONDENT’S PROFFER ON AWARD OF COMPENSATION I. Compensation for Vaccine Injury-Related Items: On March 30, 2020, respondent conceded that entitlement to compensation for a shoulder injury related to vaccine administration (“SIRVA”) was appropriate under the terms of the Vaccine Act. ECF No. 44. On April 3, 2020, Chief Special Master Corcoran issued a Ruling on Entitlement, finding that petitioner was entitled to vaccine compensation for SIRVA as a result of a tetanus-diphtheria-acellular pertussis vaccination. ECF No. 45. Respondent proffers that based on the evidence of record, petitioner, Bich Ngoc To, should be awarded $140,604.50 (including $115,000.00 in pain and suffering, and $25,604.50 in future unreimburseable medical expenses, reduced to net present value). This amount represents all elements of compensation to which petitioner would be entitled under 42 U.S.C. § 300aa-15(a). Petitioner agrees.

Respondent further proffers that petitioner, Bich Ngoc To, should be awarded funds to satisfy, in full, the State of California Medi-Cal lien in the amount of $7,211.31, which represents satisfaction of any right of subrogation, assignment, claim, lien, or cause of action the State of California may have against any individual as a result of any Medi-Cal payments the State of California has made to or on behalf of Bich Ngoc To from the date of her eligibility for benefits through the date of judgment in this case as a result of her vaccine-related injury, under Title XIX of the Social Security Act.

II. Form of the Award: The parties recommend that the compensation provided to Bich Ngoc To should be made through two lump sum payments as described below, and request that the special master’s decision and the Court’s judgment award the following:1 (1) A lump sum payment of $140,604.50, in the form of a check payable to petitioner, Bich Ngoc To. This amount accounts for all elements of compensation under 42 U.S.C. § 300aa-15(a) to which petitioner would be entitled; and (2) A lump sum payment of $7,211.31, representing compensation for satisfaction of the State of California Medi-Cal lien, payable jointly to petitioner and to: State of California—Health and Human Services Department of Health Care Services Recovery Branch – MS 4720 P O Box 997421 Sacramento, CA 95899-7421 DHCS account number : C956075 13D -VA C03 Petitioner agrees to endorse this payment to the Medi-Cal program.

Petitioner is a competent adult. Evidence of guardianship is not required in this case.

Respectfully submitted, JEFFREY BOSSERT CLARK Acting Assistant Attorney General C. SALVATORE D’ALESSIO Acting Director Torts Branch, Civil Division

CATHARINE E. REEVES Deputy Director Torts Branch, Civil Division DARRYL R. WISHARD Assistant Director Torts Branch, Civil Division s/Camille M. Collett CAMILLE M. COLLETT Trial Attorney Torts Branch, Civil Division U.S. Department of Justice P.O. Box 146 Benjamin Franklin Station Washington, D.C. 20044-0146 Telephone: (202) 616-4098 Dated: September 25, 2020