NORA BETH DORSEY, Special Master.
On January 11, 2013, Ms. Elena Karbusheva ("Ms. Karbusheva" or "petitioner") filed a petition, pro se, pursuant to the National Vaccine Injury Compensation Program,
Ms. Karbusheva's vaccination record shows that she received a number of vaccinations from March 16, 2009, through January 14, 2011.
Ms. Karbusheva was born in Russia on January 6, 1963, but she lived in Uzbekistan just prior to moving to the United States. Pet. Ex. 21 at 1. An overview of Ms. Karbusheva's medical history is set forth in petitioner's exhibit 21. She attended medical school in Uzbekistan and then worked as an obstetrician/gynecologist.
Since arriving in the United States, Ms. Karbusheva has been seen by many physicians and health care providers. She has filed numerous medical records in this case, some of which will be summarized below in order to provide an overview of the facts that have been reviewed and considered by the undersigned.
As stated above, Ms. Karbusheva's vaccination record shows that she received a number of vaccinations from March 16, 2009, through January 14, 2011.
Ms. Karbusheva underwent a physical examination by Dr. Kathleen Sutherland on November 30, 2010. Dr. Sutherland documented that Ms. Karbusheva looked well, was ambulating and that she did not have inflammation of her joints. Pet. Ex. 21. Dr. Sutherland also noted that Ms. Karbusheva had no evidence of significant respiratory limitations but that she did complain of "diffuse myalgias and arthralgias."
On February 7, 2011, Ms. Karbusheva underwent a neurological consultation with Dr. Jackie J. Whitesell. Ms. Karbusheva complained of numbness in her feet and chronic back pain. Pet. Ex. 34 at 1. Dr. Whitesell noted that Ms. Karbuseheva reported back pain that she attributed to mercury and dioxin exposure in the 1990s. Ms. Karbusheva also reported left sided weakness and vision loss which occurred in 1995, and which Ms. Karbusheva associated with her exposure to toxins.
Pet. Ex. 34 at 19-20.
An EMG study that was performed on April 8, 2011, on Ms. Karbusheva's left leg showed that Ms. Karbusheva had "evidence of mild subacute or chronic L5/S1 radiculopathy in the left leg without ongoing denervation." Pet. Ex. 33 at 2.
Ms. Karbusheva underwent a neuropsychological consultation on June 2, 2011, with Clay H. Ward, PhD. Pet. Ex. 41 at 3. Dr. Ward reported the following history, as provided by Ms. Karbusheva:
The patient. . .presents with "systematic stress." She . . .is having problems with her asthma and pain in her shoulder and back. . .in the past she has been poisoned with mercury. . .she also had "micro strokes". . .She has been on disability in the past because of the mercury poisoning. . .this occurred in about 1986 or 1987. . .in 1995 she had a chloremic allergy reaction. . .she also had a small stroke in 2009. She is reporting problems with concentration, fatigue and a high level of stress.
Pet. Ex. 41 at 3.
Dr. Ward's diagnosis was "major depressive disorder versus adjustment reaction with depressed mood, pain disorder associated with psychological and medical conditions and rule out cognitive disorder." Pet. Ex. 41 at 4. In a follow up visit on June 28, 2011, Dr. Ward's diagnosis also included probable "somatization disorder." Pet. Ex. 41 at 1.
Ms. Karbusheva saw Dr. Whitesell in a follow-up visit on July 19, 2011, with a chief complaint of "low back pain." Pet. Ex. 34 at 11. Dr. Whitesell noted that Ms. Karbusheva had an abnormal MRI which showed "chronic small vessel ischemic change[s]" in the brain.
In one of Ms. Karbusheva's most current medical records filed in this case, dated August 14, 2012, neurosurgeon Dr. Ronald E. Jutzy notes that Ms. Karbusheva had a "left L5 and/or S1 radiculopathy" but "no objective reflex loss or motor atrophy." Pet. Ex 36 at 1. Dr. Jutzy recommended conservative treatment.
Ms. Karbusheva filed her case pro se, and the case was initially assigned to Special Master Laura Millman. Special Master Millman provided a list of vaccine attorneys for Ms. Karbusheva to contact to assist in representing her.
On April 15, 2013, Ms. Karbusheva filed information regarding her physician visits and documents related to her application for Social Security Supplemental Income. She included a list of 81 health care visits from February 2010 through March 2013. Ms. Karbusheva also filed a VAERs report dated December 17, 2012, and a description of the adverse events which she believes to be related to her vaccinations, including a lengthy description of her health problems, and a list of her medications. On May 3, 2013, Ms. Karbusheva filed duplicates of the records previously filed on April 15, 2013, as well as some immunization records.
On June 4, 2013, the undersigned held a second status conference. Ms. Karbusheva appeared representing herself and Ms. Julia McInerny appeared on behalf respondent. A court interpreter again participated with the consent of petitioner. Ms. Karbusheva stated during the status conference that she had not yet obtained counsel to represent her. The undersigned requested that Ms. Karbusheva file the records of the hospitalizations that she mentioned during the status conference, as well as any other records related to her alleged vaccine injury, and a copy of a lawsuit that she filed in state court against the physician who administered the vaccines to her, as discussed during the status conference. Ms. Karbusheva was again encouraged to continue seeking to retain an attorney to represent her in this matter.
On July 10, 2013, Ms. Karbusheva filed a set of documents labeled as "Petition to add Respondent's to Suit." This set of documents included a letter from the CEO of a hospital regarding Ms. Karbusheva's concerns about the treatment she received in the emergency department of that hospital in January and February 2013. The documents also included an email from the American Civil Liberties Union to Ms. Karbusheva, a copy of the civil docket for a lawsuit that Ms. Karbusheva filed in U.S. District Court for the District of Idaho on February 14, 2013, against a total of 31 defendants including various physicians, health centers, and representatives from various health care facilities. The action was dismissed for lack of jurisdiction on March 8, 2013.
Also included in the documents filed by Ms. Karbusheva on July 10, 2013, is what appears to be a request by Ms. Karbusheva for this court to provide her with a "neurologist and rheumatologist from another state."
By order dated July 17, 2013, Ms. Karbusheva was again encouraged to retain an attorney to represent her.
On September 10, 2013, petitioner filed exhibits 1-208 on CD. The exhibits included a number of documents previously filed, a document entitled "Petition", a discussion of petitioner's concerns regarding the care she received at a third-party facility, and what appears to be a request that this court join Ms. Karbusheva's claims against the State of Idaho to the petition that she has filed in this court.
A status conference was held on September 26, 2013. Ms. Karbusheva, respondent's counsel and a court interpreter participated. During the status conference, Ms. Karbusheva informed the undersigned that she had retained an attorney, Ms. Simina Vourlis, to represent her. Based on this development, all deadlines were suspended to allow Ms. Vourlis to make an appearance in the case.
A status conference was held on December 19, 2013. Ms. Vourlis appeared on behalf of Ms. Karbusheva, and Ms. McInerney appeared on behalf of respondent. During the status conference, the parties generally discussed the vaccinations that Ms. Karbusheva received, the medical records and, more specifically, the vaccines which may have been administered to Ms. Karbusheva outside of the applicable statute of limitations period. The parties also discussed the fact that the H1N1 vaccination that Ms. Karbusheva received on February 1, 2010, is not covered by the National Vaccine Injury Compensation Program. Finally, the parties discussed the ambiguity that existed with respect to Ms. Karbusheva's alleged injuries and the fact that Ms. Karbusheva has filed various pleadings against entities that are not subject to this court's jurisdiction. As Ms. Vourlis had only recently entered her appearance, she requested additional time to review the petition and the numerous exhibits that had been filed. Petitioner's counsel was asked to file a status report by February 24, 2014, updating the court on the status of her review of the records.
The next status conference was held on April 24, 2014. Ms. Simina Vourlis appeared on behalf of Ms. Karbusheva. Ms. Julia McInerny appeared on behalf of respondent. By her request, Ms. Karbusheva also participated in the status conference with the assistance of a court translator. During the status conference, Ms. Karbusheva expressed her desire to terminate her attorney-client relationship with Ms. Vourlis. Although the undersigned inquired whether it was possible for Ms. Karbusheva and Ms. Vourlis to continue working together, after hearing Ms. Vourlis's concerns about proceeding and Ms. Karbusheva's consent to allow Ms. Vourlis to withdraw as her counsel, the undersigned granted Ms. Vourlis's motion to withdraw. The undersigned explained to Ms. Karbusheva that at this point, in order to proceed with her case, she would need to file a report from a medical doctor in support of her claim. Ms. Karbusheva inquired as to what type of medical doctor she needed to support her claim and how to locate and retain the expert. The undersigned explained that she could not offer any legal advice to Ms. Karbusheva on how prosecute her claim and encouraged Ms. Karbusheva to seek the advice of another attorney. Ms. Karbusheva was ordered to retain another attorney or to file an expert report in her case by June 23, 2014. If she was unable to do so, Ms. Karbusheva was informed that a Show Cause Order would be issued.
On May 14, 2014, Ms. Karbusheva filed a letter type document with a number of attachments. In these attached documents, Ms. Karbusheva stated that she would represent herself without an attorney or without medical experts.
On June 19, 2014, after another request by Ms. Karbusheva, her deadline to file an expert report or retain an attorney was extended to August 15, 2014.
On July 7, 2014, Ms. Karbusheva filed a "Motion for added continue law case for period 2013-2014 that VICP doesn't work." Ms. Karbusheva also filed documents, including a second order of dismissal of her lawsuit filed in the U.S. District Court for the District of Idaho and a petition requesting compensation from St. Luke's Health System, Family Medicine Health Center, and the State of Idaho, seeking twenty million dollars in damages. She also filed a motion to use medical literature in her case and filed several articles on medical conditions. Ms. Karbusheva did not, however, file an expert report.
On July 14, 2014, petitioner filed a "Motion to direct me to University Clinic to California State or Taxes
From June 16, 2014, to September 16, 2014, Ms. Karbusheva sent numerous emails to the undersigned's law clerk and they have been noted on the CM/ECF docket as informal email communications. On October 31, 2014, copies of the emails were filed as Court's Exhibits A through K.
The undersigned issued an Order to Show Cause on August 25, 2014, ordering Ms. Karbusheva to file an expert report in support of her claim, or her petition would be dismissed. Ms. Karbusheva sent additional emails to the undersigned's law clerk on July 10, 2014, and July 18, 2014.
Petitioner bears the burden of proving a prima facie case by a preponderance of the evidence.
The preponderance standard applies to each element of petitioner's proof. For example, with regard to the medical theory, the theory must be "persuasive" — that is, specific to petitioner's case and supported by a "reputable", i.e., reliable, scientific or medical explanation.
A petitioner may not be awarded entitlement under the Vaccine Act based a petitioner's claims alone. Rather, the petition must be supported by either medical records or by the opinion of a competent physician.
Ms. Karbusheva has not offered a supportive expert report in support of her claim. Further, none of Ms. Karbusheva's treating physicians attribute any of her conditions to her vaccinations. There is also no preponderant evidence in the record of: (1) a medical theory causally connecting the vaccine and Ms. Karbusheva's injury; (2) a logical sequence of cause and effect showing that the vaccine(s) was the reason for her injury; and (3) a showing of a proximate temporal relationship between the vaccine and his injury.
Therefore, Ms. Karbusheva's petition is hereby DENIED. Thus, this case is DISMISSED for insufficient proof. In the absence of a motion for review, the Clerk is directed to enter judgment accordingly.
