Debra Kay Keith v. HHS - Td, Brachial Neuritis and aggravation of Chiari I malformation (2003)

Debra Kay Keith filed a petition on May 1, 2000, representing herself without an attorney, alleging that tetanus-diphtheria (Td) vaccinations caused her to develop brachial neuritis and aggravated a pre-existing Chiari I malformation. Ms.

Keith received a first Td vaccination on March 14, 1997, and a second on April 16, 1998. Her claimed injuries were (1) brachial neuritis, a recognized Table injury when onset occurs within 28 days of a tetanus-containing vaccine, and (2) aggravation of the Chiari I malformation, an off-table claim requiring proof under the Althen three-factor causation standard.

The special master gave Ms. Keith multiple extensions of time to allow her to retain legal counsel or secure a medical expert who would provide an opinion supporting her claim.

Ms. Keith contacted numerous physicians over the course of the proceedings, but none agreed to provide an expert opinion for her case.

At oral argument before the special master, Ms. Keith conceded that she had no medical evidence and no expert opinion to support either her Table or off-table causation theories.

The special master denied the petition. Senior Judge Baskir, writing for the Court of Federal Claims on March 25, 2003, affirmed the special master's decision and denied the motion for review.

As to brachial neuritis, the court noted that although brachial neuritis is a recognized Table injury with a presumption of causation if onset occurs within 28 days of vaccination, a petitioner must still establish that the injury manifested within that window — and without any medical testimony or records establishing the timing and nature of her symptoms, Ms. Keith could not carry even that threshold burden.

As to the off-table Chiari I aggravation claim, the Althen standard requires a petitioner to prove, through medical evidence, that the vaccine can cause or aggravate the claimed injury, that it did so in this case, and that the timing is consistent with causation; without expert medical testimony, petitioner could not satisfy any of the three factors. The court acknowledged the genuine difficulty Ms.

Keith faced in securing representation and medical support for her claims, but observed that the Vaccine Act requires medical evidence to establish a vaccine injury, and that requirement applies equally to unrepresented petitioners. The dismissal was affirmed.