Haynes v. Secretary of Health and Human Services ( 2021 )

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 18-1925V
UNPUBLISHED
KATHLYN HAYNES, Chief Special Master Corcoran
Petitioner, Filed: October 13, 2021
v.
Special Processing Unit (SPU);
SECRETARY OF HEALTH AND Findings of Fact; Site of Vaccination;
HUMAN SERVICES, Influenza (Flu) Vaccine; Shoulder
Injury Related to Vaccine
Respondent. Administration (SIRVA)
Leah VaSahnja Durant, Law Offices of Leah V. Durant, PLLC, Washington, DC, for
Petitioner.
Debra A. Filteau Begley, U.S. Department of Justice, Washington, DC, for Respondent.
FINDINGS OF FACT1
On December 17, 2018, Kathlyn Haynes 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 shoulder injury related to vaccine
administration (“SIRVA”) as a result of an influenza (“flu”) vaccine received in her right
shoulder on October 6, 2017. Petition at 1. The case was assigned to the Special
Processing Unit of the Office of Special Masters.
1 Because this unpublished fact ruling contains a reasoned explanation for the action in this case, I am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 fact ruling 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.
2National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755. Hereinafter, for ease
of citation, all section references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C.
§ 300aa (2012).
For the reasons discussed below, I find the flu vaccine alleged as causal was more
likely than not administered in Petitioner’s right shoulder, as Petitioner has alleged.
I. Relevant Procedural History
As noted, the matter was initiated in December 2018. On May 6, 2020, Respondent
filed a status report indicating that although Petitioner alleged a right shoulder SIRVA from
the flu vaccine administered on October 6, 2017, the records were unclear as to the site
of vaccination. ECF No. 25. (citing Ex. 7 at 12; Ex. 1 at 8).
In a scheduling order filed on May 28, 2020, I expressed the view that a hearing
would not be necessary, and that I intended to issue a fact ruling as to the site of vaccine
administration after providing the parties with an opportunity to file briefs and any
evidence they wish to have considered. ECF No. 26. On June 29, 2020, Respondent filed
a motion for a finding of fact. ECF No. 27. On August 5, 2020, Petitioner filed a response
brief. ECF No. 29. The matter is now ripe for adjudication.
II. Issue
At issue is whether Petitioner received the vaccination alleged as causal in her
right arm. 42 C.F.R. § 100.3(a) XIV.B. (2017) (influenza vaccination).
III. Authority
Pursuant to Vaccine Act Section 13(a)(1)(A), a petitioner must prove, by a
preponderance of the evidence, the matters required in the petition by Vaccine Act
Section 11(c)(1). A special master must consider, but is not bound by, any diagnosis,
conclusion, judgment, test result, report, or summary concerning the nature, causation,
and aggravation of petitioner’s injury or illness that is contained in a medical record.
Section 13(b)(1). “Medical records, in general, warrant consideration as trustworthy
evidence. The records contain information supplied to or by health professionals to
facilitate diagnosis and treatment of medical conditions. With proper treatment hanging in
the balance, accuracy has an extra premium. These records are also generally
contemporaneous to the medical events.” Cucuras v. Sec’y of Health & Human Servs.,
993 F.2d 1525, 1528 (Fed. Cir. 1993).
Accordingly, where medical records are clear, consistent, and complete, they
should be afforded substantial weight. Lowrie v. Sec’y of Health & Human Servs., No. 03-
1585V, 2005 WL 6117475, at *20 (Fed. Cl. Spec. Mstr. Dec. 12, 2005). However, this rule
does not always apply. In Lowrie, the special master wrote that “written records which
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are, themselves, inconsistent, should be accorded less deference than those which are
internally consistent.” Lowrie, at *19.
The United States Court of Federal Claims has recognized that “medical records
may be incomplete or inaccurate.” Camery v. Sec’y of Health & Human Servs., 42 Fed.
Cl. 381, 391 (1998). The Court later outlined four possible explanations for
inconsistencies between contemporaneously created medical records and later
testimony: (1) a person’s failure to recount to the medical professional everything that
happened during the relevant time period; (2) the medical professional’s failure to
document everything reported to her or him; (3) a person’s faulty recollection of the events
when presenting testimony; or (4) a person’s purposeful recounting of symptoms that did
not exist. La Londe v. Sec’y of Health & Human Servs., 110 Fed. Cl. 184, 203-04 (2013),
aff’d, 746 F.3d 1335 (Fed. Cir. 2014).
The Court has also said that medical records may be outweighed by testimony that
is given later in time that is “consistent, clear, cogent, and compelling.” Camery, 42 Fed.
Cl. at 391 (citing Blutstein v. Sec’y of Health & Human Servs., No. 90-2808, 1998 WL
408611, at *5 (Fed. Cl. Spec. Mstr. June 30, 1998). The credibility of the individual offering
such testimony must also be determined. Andreu v. Sec’y of Health & Human Servs., 569
F.3d 1367, 1379 (Fed. Cir. 2009); Bradley v. Sec’y of Health & Human Servs., 991 F.2d
1570, 1575 (Fed. Cir. 1993).
The special master is obligated to fully consider and compare the medical records,
testimony, and all other “relevant and reliable evidence contained in the record.” La
Londe, 110 Fed. Cl. at 204 (citing § 12(d)(3); Vaccine Rule 8); see also Burns v. Sec’y of
Health & Human Servs., 3 F.3d 415, 417 (Fed. Cir. 1993) (holding that it is within the
special master’s discretion to determine whether to afford greater weight to medical
records or to other evidence, such as oral testimony surrounding the events in question
that was given at a later date, provided that such determination is rational).
IV. Finding of Fact
Based upon a review of the entire record, I find that the flu vaccine Petitioner
received on October 6, 2017, was likely administered in her right arm, as she contends.
Specifically, I base my finding on the following evidence:
• Petitioner has a documented medical history of left shoulder pain. Ex. 2 at 31-33;
134-38, 223-31; 257-59. The medical records indicate that Petitioner first sought
treatment for this issue on October 16, 2016. Id. at 257-59.
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• Petitioner received the flu vaccine alleged as causal on October 6, 2017. Ex. 1 at
1-2. It was administered by a Rite-Aid technician at her place of employment. Ex.
3 at 1.
• The vaccination record does not denote the site of vaccine administration. Ex. 1 at
1-2.
• In a July 16, 2018 email, a Rite Aid representative acknowledged that the site of
Petitioner’s October 6, 2017 flu shot had not been noted on the record of vaccine
administration. Ex. 7 at 12. He further stated that “the data entered into the system
while processing the script is for the Left Arm.” Id. In her emailed response,
however, sent on July 17, 2018, Petitioner stated that “while the [administering]
tech asked if I wanted the shot in my left arm, I requested that it be administered
in my right arm.” Id. at 11.
• In her affidavit, Petitioner avers that she asked the Rite-Aid technician to inject the
vaccine into her right arm “because I had strained some ligaments in the left
shoulder about a year earlier and didn’t want to risk re-injury.” Ex. 4 at 1.
• On October 19, 2017 (13 days post-vaccination), Petitioner presented to Dr. Soma
Tharakan with a chief complaint of right shoulder pain that “started on October 6
when she got a [f]lu shot.” Ex. 2 at 111-12. Following an examination, Petitioner
was diagnosed with pain in the right shoulder and underwent a right shoulder x-
ray. Id. at 112-13.
• Petitioner underwent an MRI of her right shoulder on November 20, 2017. Ex. 2 at
30-31. It revealed “[m]yotendinous strain and intermediate to high-grade interstitial
tear of the right infraspinatus tendon.” Id. at 31.
• Petitioner presented to Dr. Robert Tracey, an orthopedist, on November 30, 2017
for “R[ight] shoulder pain starting after the flu vaccine on 6OCT17.” Ex. 2 at 96. Dr.
Tracey rendered a provisional diagnosis of “[s]train of muscle(s) and tendon(s) of
the rotator cuff of [the] right shoulder” and opined that the “flu vaccine likely
infiltrated SA [subacromial] space.” Id. at 99.
• Petitioner presented for an initial physical therapy evaluation of her right shoulder
on December 12, 2017. Ex. 2 at 89-94. The record documenting this appointment
indicates that the onset of Petitioner’s symptoms began after her receipt of the flu
shot in her right deltoid. Id. at 90.
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• The treatment notes documenting Petitioner’s January 18, February 15, and March
15, 2018 appointments indicate that she presented for “follow up related to R[ight]
shoulder pain s/p flu vaccine.” Ex. 2 at 40, 59, 76. On March 15, 2018, it was noted
that Petitioner’s “objective exam [was] consistent with R[ight] shoulder weakness
and R/C [rotator cuff] tear, likely still aggravated post injection for immunization.”
Id. at 42.
• Petitioner presented for her final physical therapy appointment on April 16, 2018.
Ex. 2 at 263. She reported that her pain had improved, but noted experiencing
“aggravation in the mornings after doing her exercises or sleeping on the right
side.” Id.
The above-referenced evidence supports a finding that the vaccine at issue was
likely administered in Petitioner’s right shoulder. In the context of seeking care, Petitioner
consistently reported that the vaccine had been administered in her right arm, and that
her injury was associated with the vaccination. Accordingly, there is some record support
for her contention about the situs of administration beyond witness statements. The
record of Petitioner’s October 19, 2017 visit to Dr. Tharakan for right shoulder pain, which
“started on October 6 when she got a [f]lu shot” is particularly persuasive. This record is
from only 13 days after vaccination, and is the most contemporaneous record other than
the vaccine administration record itself.
In addition, Petitioner has provided a logical explanation for why she would have
specifically requested that the vaccine be administered in her right arm. In her affidavit,
Petitioner asserts that she asked the technician to inject the vaccine into her right arm
because of a previous injury to her left shoulder. Ex. 4 at 1. And the medical records show
that Petitioner had a history of left shoulder pain that began approximately one year before
her flu shot. See Ex. 2 at 31-33; 134-38, 223-31; 257-29.
I acknowledge that the vaccine record itself does not set forth the site of
vaccination. Ex. 1 at 2. I also recognize Rite Aid’s statement that data entered into its
system indicates that the vaccine was injected into Petitioner’s left arm. Ex. 7 at 12.
However, this statement is not supported by any documentary evidence corroborating the
contention, and there is no information concerning the identity of the person who entered
this information and the date on which it was done. By contrast, all other medical records
filed in this case and bearing on Petitioner’s post-vaccination treatment support a finding
that the vaccine was administered in Petitioner’s right arm, and Petitioner’s statements
amplify reasons to find this to be the case. See, e.g. Parker v. HHS, No. 15-1331V, 2016
WL 3443929 (Fed. Cl. Spec. Mstr. May 13, 2016)(finding that a vaccine record recording
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administration in the left arm was incorrect based primarily on petitioner’s consistent
attribution of his right shoulder condition to his vaccination throughout his treatment).
Accordingly, preponderant evidence establishes that the vaccination alleged as
causal in this case was more likely than not administered to Petitioner in the right
arm/shoulder on October 6, 2017.
V. Scheduling Order
Given my finding of fact regarding the site of vaccine administration, Respondent
should evaluate and provide his current position regarding the merits of Petitioner’s
case.
Respondent shall file, by no later than Friday, November 12, 2021, a status
report concerning how he intends to proceed, or his unfiled Rule 4(c) report.
IT IS SO ORDERED.
s/Brian H. Corcoran
Brian H. Corcoran
Chief Special Master
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