K.S. v. HHS - MMR, fever, seizure-like symptoms, cyanosis, and developmental disabilities (2015)

On October 27, 2014, Connie Graham, acting as the pro se guardian for K.S., a minor, filed a petition under the National Vaccine Injury Compensation Program. K.S., born on June 19, 2006, received the Measles-Mumps-Rubella (MMR) vaccine on June 21, 2007.

Ms. Graham alleged that K.S. experienced a sudden onset of fever, seizure-like symptoms, and cyanosis in July 2007, for which he received medical treatment.

Further, she alleged that by the time K.S. began kindergarten in 2012, school evaluations revealed motor skill impairment and learning and developmental disabilities, all of which she attributed to the MMR vaccine. The petition was accompanied by medical records, including a September 10, 2008 letter from Dr.

Louay Nassri confirming K.S.'s July 2007 MMR reaction. The respondent moved to dismiss the petition, asserting it was barred by the Vaccine Act's statute of limitations.

The public decision does not describe the specific treatments K.S. received for his symptoms or developmental issues, nor does it name petitioner's counsel. Special Master Brian H.

Corcoran issued a decision on September 10, 2015, dismissing the case. The Special Master found the petition to be untimely.

Calculating from the earliest alleged symptom manifestation in July 2007, the petition should have been filed by July 7, 2010, over four years before it was actually filed. Even when considering the alleged onset of developmental disabilities, which were noted in the spring of 2010 according to school records, and Ms.

Graham's awareness of developmental problems in 2007 and her efforts to address them when K.S. was three years old (in 2009), the petition filed in 2014 remained time-barred. The Special Master explained that the Vaccine Act statute of limitations runs from the first symptom or manifestation of onset, regardless of whether the symptom is recognized as such, and that the "discovery rule" does not apply to Vaccine Act cases.

The Special Master also addressed the possibility of equitable tolling, noting that it applies only in limited circumstances such as fraud or duress, and not merely due to a petitioner's lack of awareness of a potential claim. As the circumstances presented did not meet the criteria for equitable tolling, the petition was dismissed as untimely.

No compensation was awarded. The respondent's counsel was Debra Begley from the U.S.

Dep’t of Justice.