NANCY B. FIRESTONE, Judge.
Pending before the court is the motion of petitioners Peter and Cherie Nuttall, on behalf of their son N.N., for review of the special master's decision deny compensation under the National Childhood Vaccine Injury Act of 1986, 42 U.S.C. §§ 300a-1 to -34 ("the Vaccine Act"), as amended.
N.N. suffers a severe neurological disorder diagnosed as childhood disintegrative disorder ("CDD").
In the hearing before the special master, the most important pieces of evidence as to whether N.N. experienced encephalitis following his vaccinations were two magnetic resonance imaging ("MRI") studies of N.N.'s brain, one conducted in 2005 and one in 2011. Petitioners' expert, Dr. Robert Shuman, a pediatric neurologist, testified that the MRI indicated that N.N. had suffered viral encephalitis. The petitioners also presented the report of Dr. Jose Bauza, the neuroradiologist who supervised N.N.'s 2011 MRI. Dr. Bauza did not testify at the hearing, but in his report noted irregularities in N.N.'s MRI which he found to be consistent with previous encephalitis. The government's expert, Dr. Max Wiznitzer, also a pediatric neurologist, disagreed with Dr. Shuman and Dr. Bauza's interpretation of the MRIs and testified that N.N.'s brain did not show signs of encephalitis.
The special master found that the government's expert was more persuasive than petitioners' expert, primarily because Dr. Wiznitzer was able to cite medical literature to support his opinions that N.N.'s brain appeared normal in the MRI scans. The special master decided that Dr. Bauza's report was not entitled to significant weight because Dr. Bauza's opinion lacked reasoning sufficient to outweigh Dr. Wiznitzer's testimony and evidence. The special master also rejected petitioners' argument that Dr. Bauza should be given particular deference because, as a neuroradiologist, Dr. Bauza had a particular expertise that made him more qualified than the other experts who testified in this case. In addition, the special master rejected the petitioners' argument that Dr. Bauza's report should be given additional consideration because Dr. Bauza was N.N.'s treating physician, finding that Dr. Bauza had been retained in connection to the present litigation and not merely for treatment purposes. The special master therefore concluded that petitioners had failed to meet their burden of showing by a preponderance of the evidence that N.N. had suffered encephalitis.
In their Memorandum of Objections, ECF No. 103 ("Pet. Mem."), petitioners argue that the special master's decision was arbitrary and capricious because the special master failed to correctly evaluate and give weight to Dr. Bauza's opinion. The government counters that the special master's treatment of Dr. Bauza's opinion was sufficient, reasonable, and supported by the record.
Upon review of the record in this case, the court finds that the special master carefully considered the medical arguments of both sides, and that his conclusion that plaintiffs had not met their burden was reasonable in light of the evidence in the record. Further, the court finds that it was reasonable for the special master to find that Dr. Bauza was not more qualified or entitled to more deference that the other experts in this case. Therefore, petitioners' motion is
On November 19, 2007, Peter and Cherie Nuttall filed a petition under the Vaccine Act on behalf of their son, N.N., alleging that the MMR or DTap vaccinations N.N. received in November of 2004, when N.N. was four years old, led to his CDD. In addition to CDD, N.N. has been diagnosed with child psychosis, mental retardation, ADD, and cognitive disorder — not otherwise specified. Dec. at 6. He was hospitalized for self-injurious behavior for six days in August of 2006. In 2005 N.N. underwent an MRI study, which a radiologist interpreted as normal.
The case was initially assigned to Special Master Moran, who conducted a fact hearing on June 24, 2008, in Las Vegas, Nevada "in order to resolve factual disputes regarding the onset of N.N.'s condition in light of conflicts between the medical records and petitioners' claims."
In October of 2011, Dr. Jose Bauza, a neuroradiologist, oversaw a second MRI study on N.N.'s brain. Pet. Mem. 4. Dr. Bauza found that the MRI study demonstrated "subtle peritrigonal hyperintensity which are not expected for the patient's age (11)" and "hyperintensity within the hippocampus bilaterally."
On November 7, 2011, after the Autism Omnibus Proceedings had concluded, the case was reassigned to Chief Special Master Campbell-Smith. Dec. at 7. Petitioners filed an amended petition on November 28, 2011. Am. Pet., ECF No. 45. The amended petition alleged that N.N.'s severe neurologic disorder was a result ("sequela") of a limbic encephalitis, a Table Injury, attributable to his November 22, 2004, MMR or DTaP vaccine.
Following briefing preceding the expert hearing, Chief Special Master Campbell-Smith accepted the petitioners' argument that "encephalitis" for the purpose of the Vaccine Injury Table meant any swelling of the brain. Dec. at 12. The special master found that in order to recover, the petitioners must prove, first, that N.N. "in fact did experience demonstrable brain inflammation," second, that "the impact of the claimed inflammation on [N.N.'s] brain was severe enough to result in the injuries he experienced," and third, "whether the location of the inflammation in N.N.'s brain could have caused the symptoms he experienced."
The expert hearing was conducted on January 25, 2013, at the Office of Special Masters in Washington, D.C. Dr. Max Wiznitzer, a pediatric neurologist, testified on behalf of the government. Dr. Robert Shuman, also a pediatric neurologist, testified as an expert on behalf of petitioners. Petitioners also submitted Dr. Bauza's report as evidence that N.N. suffered from encephalitis. N.N.'s medical records also included the report of Dr. Brett Hewell, the radiologist who interpreted N.N.'s 2005 MRI as normal.
On March 8, 2013, the case was reassigned to Special Master Hastings.
In his interpretation of N.N.'s MRIs, the petitioners' expert, Dr. Shuman identified what he perceived to be five abnormalities which he argued were evidence of scarring of the brain consistent with past encephalitis inflammation: (1) trigonal hyperintensities; (2) hyperintensity of the hippocampi; (3) hyperintensity of the ventricle lining; (4) enlarged ventricles; and (5) hyperintensity of the fornices. The government's expert, Dr. Wiznitzer, provided a contrary explanation on each of these five points, concluding the MRI images were not consistent with previous encephalitis.
The petitioners argued that Dr. Shuman the better qualified expert to interpret an MRI study because he received a certificate in neuroimaging from the American Society of Neuroimaging. Conversely, the government argued that Dr. Wiznitzer was better qualified because unlike Dr. Shuman, who had retired from clinical practice in 2006, Dr. Wiznitzer continues to practice pediatric neurology and makes use of MRI technology as part of his regular practice. However, after comparing the respective credentials of Dr. Wiznitzer and Dr. Shuman, the special master found that "there is no qualification gap between two experts."
Dr. Shuman testified that images from N.N.'s 2005 and 2011 MRI studies identified at trial as Exhibits 42-A and 42-B contained evidence of abnormalities in the peritrigonal region on both sides of the brain. Dr. Shuman stated in an MRI scan of a normal brain, myelination in the centrum semiovale, which he described as "the core of the white matter," should appear as a black space. But according to Dr. Shuman, N.N.'s brain scan showed "linear radiant striped zones of T2 hyperintensity in the same region of the peritrigonal white matter." Dec. at 15. Dr. Shuman explained that in N.N.'s MRI, the centrum semiovale was like "Swiss cheese."
Dr. Wiznitzer did not dispute that Exhibits 42-A and 42-B showed linear hyperintensities within N.N.'s white matter. However, according to Dr. Wiznitzer, the hyperintensities were indications of "terminal zones" of immature myelin.
The special master found that Dr. Wiznitzer's opinion was more persuasive. Dec. at 17. The special master explained that he found Dr. Wiznitzer's explanation that the hyperintensities were a "normal developmental variant known as terminal myelination" was "coherent" and "supported by medical literature."
Dr. Shuman testified that Exhibits 43-A and 43-B "show bilateral hyperintensity of the posterior portions of hippocampi."
Dr. Wiznitzer testified that, in his experience in his own practice, the "classic" pattern of limbic encephalitis would be shown as a hyperintensity in the anterior of the hippocampus.
In addition to arguing that Dr. Shuman's interpretation of the MRI was not consistent with limbic encephalitis, Dr. Wiznitzer also argued that the posterior hyperintensity Dr. Shuman identified was "an `artifact' of the MRI process and was not an abnormality at all."
The special master agreed with Dr. Wiznitzer. With respect to the dispute over whether hyperintensities in the posterior hippocampus could signify prior limbic encephalitis, the special master found that "[t]his ambiguity alone might be indication enough that Petitioners have failed to meet their burden on this issue."
Dr. Shuman testified that Exhibit 43-A showed "signal intensity around the lining of the lateral ventricle."
Dr. Shuman compared Exhibit 44-A, from N.N.'s 2011 MR study, with Exhibit 44-B, an image showing the same region of the brain from N.N.'s 2005 study.
The special master found that, though the petitioners showed that the lateral ventricles had grown over time, the petitioners had not demonstrated the medical significance of that change.
Dr. Shuman testified the images from N.N.'s MRI studies included hyperintensities in the body of the fornices, which he concluded was indicative of scarring.
The special master found that Dr. Shuman "acknowledges that N.N.'s MRI should demonstrate some level of hyperintensity in the region of the fornix."
N.N.'s medical records also included the finding of radiologist Dr. Hewell that N.N.'s 2005 MRI study was normal, and Dr. Bauza's report stating that N.N.'s 2011 MRI study was consistent with a prior encephalitis. The petitioners relied heavily on the opinion of Dr. Bauza, the neuroradiologist who supervised N.N.'s 2011 MRI study and provided the initial interpretation of those scans.
The special master found that, in light of the other evidence in this case, Dr. Bauza and Dr. Hewell's reports were "not entitled to any great weight in resolving the case." Dec. at 23. The special master reasoned that the fact that "two additional physicians have produced conflicting findings is not in itself enlightening with regard to the question of whether Dr. Shuman or Dr. Wiznitzer has presented superior evidence explaining why one interpretation is correct while another is wrong."
In addition, the special master rejected petitioners' argument that Dr. Bauza was N.N.'s treating physician, and as such, that his opinion should be given particular weight under Federal Circuit case law. N.N. was referred to Dr. Bauza by his treating physician, however, the special master found that the petitioners' expert had acknowledged that "the decision to do another MRI in 2011 was made at Dr.
Congress enacted the Vaccine Act in order to create "a federal no-fault compensation scheme under which awards were to `be made to vaccine-injured persons quickly, easily, and with certainty and generosity.'"
When, as in this case, the petitioner alleges an injury listed on the Vaccine Injury Table, the petitioner has the burden of proving by a preponderance of evidence that the injury meets the criteria of the Table injury, and that the Table injury occurred within the prescribed time limits.
This court has jurisdiction to review the decisions of a special master in a Vaccine Act case upon a motion from the petitioner. 42 U.S.C. § 300aa-12(e)(2). When reviewing a special master's decision, the court may:
If the special master "has considered the relevant evidence of record, drawn plausible inferences and articulated a rational basis for the decision," then "reversible error is extremely difficult to demonstrate."
The petitioners argue that it was arbitrary and capricious for the special master to disregard Dr. Bauza's report of N.N.'s 2011 MRI scan. Because the correct interpretation of the 2011 MRI was critical to this case, the petitioners argue, it was reversible error to ignore Dr. Bauza's report. The petitioners assert that the special master's opinion was unreasonable because the special master failed to consider two reasons why Dr. Bauza's opinion should be given more weight than Dr. Shuman. First, petitioners argue that as a neuroradiologist, Dr. Bauza was more qualified than the other experts who testified regarding N.N.'s MRI results. Second, petitioners argue that Dr. Bauza's opinion should have been given particular weight because he was a "treating physician" and, under precedent in this circuit, should be given additional consideration on that basis.
The respondent acknowledges that the special master "declined to give any significant weight to Dr. Bauza's interpretation of the 2011 MRI scan." Gov't Resp. 7. However, the government argues that the treatment that the special master gave to Dr. Bauza's report was sufficient, and notes that under the Vaccine Act, a special master is not bound by any particular medical record. The government asserts that the special master rationally found that Dr. Bauza should not be considered a treating physician because the decision to perform the 2011 MRI was motivated by this litigation rather than a need for clinical treatment.
The court agrees with the government that the special master's treatment of Dr. Bauza's report was not arbitrary or capricious. The special master gave a careful and detailed analysis of the medical issues involved in this case, and found that petitioners had not met their burden in light of relevant medical literature contradictory to their position. Further, the special master articulated a reasonable explanation for his decision not to rely on Dr. Bauza's report. The petitioners make several arguments in support of their position that Dr. Bauza was per se a more credible witness. However, as discussed below, none of plaintiff's arguments are sufficient to show that the special master's decision to rely upon expert witnesses instead of Dr. Bauza's report was arbitrary and capricious. By arguing that Dr. Bauza's opinion should have been more persuasive than the experts who testified in this case, the petitioners are effectively asking this court to re-weigh the evidence and re-make credibility determinations, which this court is not permitted to do. These determinations are properly within the special master's discretion, and the court will not disturb his findings.
Petitioners argued that, as a neuroradiologist, Dr. Bauza is better qualified than Dr. Wiznitzer or Dr. Shuman (both pediatric neurologists) and Dr. Hewell (a radiologist) to interpret an MRI study. Therefore, petitioners argue, Dr. Bauza's opinion should carry more weight than any of the other doctors who gave evidence in this case. Petitioners state that Dr. Bauza is a "board certified neuroradiologist—a specialist who has studied and worked in a specialized residency program developing expertise in interpreting MRI scans and other neuroimaging studies." Pet. Mot. 4. According to petitioners, "[b]oth Dr. Shuman and Dr. Wiznitzer testified that a board certified neuroradiologist was better qualified to interpret a[n] MRI scan than a pediatric neurologist."
The court finds that the record does not contain any significant evidence that Dr. Bauza's credentials make him the most reliable witness, and the evidence that does exist in the record regarding the relative qualifications of a neuroradiologist as compared to a pediatric neurologist is not as decisive as petitioners suggest. On cross-examination, Dr. Wiznitzer testified that, in his clinical practice, the MRI scans he orders are read by a neuroradiologist because, Dr. Wiznitzer explained, "that is [the neuroradiologist's] job in the hospital." Tr. 222. When asked if a neuroradiologist's reading of an MRI is generally more reliable than the interpretation by a pediatric neurologist, Dr. Wiznitzer answered, "[w]hen the neuroradiologist's interpretation makes sense, yes."
Further, even assuming that, all things being equal, "a board certified neuroradiologist was better qualified to interpret a[n] MRI scan than a pediatric neurologist," Pet. Mot. 10, the record still does not contain any evidence that Dr. Bauza would be the best person to interpret this MRI in this particular case. Dr. Bauza did not testify at the hearing to explain his conclusions or qualifications. Unlike Dr. Shuman and Dr. Wiznitzer, who submitted extensive documentation of their credentials, including education, certificates, academic work, and clinical experience, we know almost nothing about Dr. Bauza's training and experience. In his opinion, Special Master Hastings carefully reviewed Dr. Shuman and Dr. Wiznitzer's respective training, clinical experience, certifications, and academic contributions. Though each side argued that its respective expert was better qualified expert to interpret an MRI study, the special master rejected both sides' arguments, finding that neither expert was inherently more qualified:
Dec. at 23. In contrast, the record includes no such documentation of Dr. Bauza's credentials, training, or experience.
Importantly, there is nothing in the record regarding Dr. Bauza's experience in pediatric neuroradiology. A significant question in this case is whether the trigonal hyperintensities observed in N.N.'s MRI scan were a normal developmental variant for a person his age, or whether a normal eleven-year-old brain would not exhibit hyperintensities of that nature. While Dr. Shuman and Dr. Wiznitzer both have documented experience in developmental neurology, we do not know whether Dr. Bauza does or not. In addition, the petitioners do not give any citation for their assertion that Dr. Bauza "has studied and worked in a specialized residency program developing an expertise in interpreting MRI scans," Pet. Mem. 4, or that he is "highly regarded" in his field,
The petitioners also assert that the special master's determination that Dr. Bauza was not N.N.'s "treating physician" was reversible error. The "treating physician" designation is important because the Federal Circuit has recognized that medical records of treating physicians may be particularly probative in vaccine cases because "treating physicians are likely to be in the best position to determine whether `a logical sequence of cause and effect show[s] that the vaccination was the reason for the injury.'"
The reasoning underlying the finding that opinions of treating physicians should be given particular weight does not apply when, as here, the treating physician only saw the patient after the injury and based his opinion on the same evidence as relied upon by the retained experts.
In this case, however, Dr. Bauza does not have a similar advantage over the experts who testified in this case, as he treated N.N. only after the alleged vaccine injury occurred. Like the experts who testified in this case, Dr. Bauza based his conclusions off the MRI scans and not on any interaction with the patient. In
In arguing that the special master improperly disregarded Dr. Bauza's opinion, petitioners note that, in the close to nine pages of the special master's decision discussing the correct interpretation of N.N.'s MRI scans, "[a]t no point in the analysis does [the special master] even mention Dr. Jose Bauza's interpretation of N.N.'s 2011 MRI scan." Pet. Mem. 9. The Vaccine Act requires a special master to "consider . . . any diagnosis, conclusion, medical judgment, or autopsy or coroner's report which is contained in the record regarding the nature, causation, and aggravation of the petitioner's" condition, as well as "the results of any diagnostic or evaluative test which are contained in the record and the summaries and conclusions." 42 U.S.C. § 300aa-13(b)(1)(A)-(B). However, medical records are "not binding on the special master or the court," and in "evaluating the weight to be afforded to any such" medical evidence, the special master "shall consider the entire record and the course of the injury, disability, illness, or condition." 42 U.S.C. § 300aa-13(b)(1)(A)-(B).
Although the section of the special master's decision evaluating the MRI results does not mention Dr. Bauza by name, the special master did thoroughly evaluate the medical evidence from the 2011 MRI study which Dr. Bauza had opined were consistent with encephalitis. Dr. Bauza made two findings that he believed were indicative of previous encephalitis: hyperintensities in the peritrigonal region and bilateral hyperintensities in the hippocampus. These were the first two of the five findings that Dr. Shuman identified as indicative of encephalitis, and the issues that the special master spent the longest time discussing in his opinion. In his decision, the special master noted that Dr. Bauza had made both of these findings, demonstrating that the special master had considered and understood Dr. Bauza's opinion rather than simply disregarding it. Dr. Bauza's report did not include any findings that were not addressed in Dr. Shuman's report; therefore, the special master did in fact evaluate the merits of Dr. Bauza's report. To analyze Dr. Bauza's opinion that hyperintensities in the peritrigonal region and bilateral intensity in the hippocampus were abnormal for a second time would have been redundant.
Ultimately, the special master found that Dr. Wiznitzer was the more reliable witness because Dr. Wiznitzer "present[ed] coherent and detailed testimony that was supported by
In a supplemental brief, petitioners argued that
In contrast, the special master in this case did not discount the significance of N.N.'s MRI studies. To the contrary, the special master correctly identified the interpretation of the MRIs as the most important issue in this case and spent the bulk of his opinion carefully considering the experts' differing interpretations of the MRI. As discussed above, the special master fully analyzed the substance of Dr. Bauza's findings because Dr. Bauza's opinion was coextensive with Dr. Shuman's. Therefore, the court finds that the special master's treatment of Dr. Bauza's report was in conformity with the Vaccine Act's instruction to consider medical judgments in light of the entire record.
As the special master noted, "qualified experts can and do differ on the questions of MRI interpretation." Dec. at 25. Because the special master carefully considered and weighed all of the evidence presented in this case, his decision to credit Dr. Wiznitzer's opinion over Dr. Bauza or Dr. Shuman is a credibility determination that is "virtually unreviewable."
IT IS SO ORDERED.