Rodrigue v. Secretary of Health and Human Services ( 2020 )

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
*************************
PRENTISSA RODRIGUE, *
* No. 17-1364V
Petitioner, * Special Master Christian J. Moran
*
v. *
* Filed: October 22, 2019
SECRETARY OF HEALTH *
AND HUMAN SERVICES, *
* Tentative Finding of Facts
Respondent. *
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Frank Lamothe, Lamothe Law Firm, L.L.C., New Orleans, LA, for petitioner;
Lynn Schlie, United States Dep’t of Justice, Washington, DC, for respondent.
UNPUBLISHED TENTATIVE RULING FINDING FACTS1
Special masters may provide tentative findings and conclusions during the pendency of
litigation. See Vaccine Rule 5. In the undersigned’s estimation, the rules envision that tentative
findings before all the evidence is developed could facilitate formal and informal resolution of a
claim. The undersigned offers the following tentative findings and conclusions so that the
parties may be able to focus their efforts on those issues that are material and remain disputed.
These findings are tentative insomuch as they are subject to change upon the presentation of
additional evidence or argument.
The parties dispute when Ms. Rodrigue began to experience significant neurologic
problems after her November 1, 2016 flu vaccination. A hearing was held on October 16-17,
2019, in New Orleans, Louisiana. See Campbell v. Sec’y of Health & Human Servs., 69 Fed. Cl.
775, 779-80 (2006) (noting the efficacy of holding a hearing in cases where testimony and
medical records conflict). Due to the effects of medication, Ms. Rodrigue did not testify.
However, Ms. Rodrigue called her husband, two daughters, and a neurologist who treated her
(Dr. Trahant). The Secretary called Ms. Rodrigue’s primary care physician, Dr. Acosta. The
undersigned has considered all the evidence including the testimony from that hearing.
1
The E-Government Act, 44 U.S.C. § 3501 note (2012) (Federal Management and
Promotion of Electronic Government Services), requires that the Court post this decision on its
website (https://www.uscfc.uscourts.gov/aggregator/sources/7). This posting will make the
decision accessible to anyone via the internet. Pursuant to Vaccine Rule 18(b), the parties have
14 days to file a motion proposing redaction of medical information or other information
described in 42 U.S.C. § 300aa-12(d)(4). Any redactions ordered by the special master will
appear in the document posted on the website.
Pursuant to well-established standards for determining when events did or did not
happen, see Sanchez v. Sec'y of Health & Human Servs., No. 11-685V, 2013 WL 1880825, at *2
(Fed. Cl. Spec. Mstr. Apr. 10, 2013), mot. for rev. denied, 142 Fed. Cl. 247, 251-52 (2019),
appeal docketed, No. 2019-1753 (Fed. Cir. Apr. 9, 2019), the undersigned finds how the
evidence preponderates. In setting forth the findings, the undersigned also cites to the primary
evidence that is the basis for the finding. The undersigned recognizes that not all evidence is
entirely consistent with these findings. See Doe 11 v. Sec’y of Health & Human Servs., 601
F.3d 1349, 1355 (Fed. Cir. 2010) (ruling that the special master’s fact-finding was not arbitrary
despite some contrary evidence). Indeed, it is the presence of inconsistent evidence that dictated
a proceeding to resolve factual disputes.
After considering the witnesses’ testimony as well as the documentary evidence, the
undersigned finds that Ms. Rodrigue first experienced a dramatic decline in her neurologic
function on approximately January 30, 2017. The primary reasons supporting this finding are
as follows:
1. Before receiving the flu vaccination on November 1, 2016, Ms. Rodrigue was generally
active. She suffered from chronic cervical pain and lumbar pain following motor vehicle
accidents. See exhibit 5 at 101 (Dr. Trahant letter to insurance company), exhibit 16 at 4.
These pre-existing problems complicate Ms. Rodrigue’s case in that the neurologic
problems that she eventually experienced were not fresh. She had grown accustomed to
dealing with pain.
2. With her husband Ms. Rodrigue visited Dr. Acosta on January 11, 2017. Exhibit 7 at 4-
6.2 Dr. Acosta’s notes do not memorialize any complaints about (a) an inability to walk
down the stairs in her house, (b) an inability to walk from her bed to the bathroom to use
the toilet, (c) an inability to participate in holiday functions such as cooking, and (d) an
inability to use normal utensils for feeding. Dr. Acosta testified that if Ms. Rodrigue or
her husband told him any of these problems, he would have documented them. Dr.
Acosta appeared to be a conscientious doctor, who wanted to keep medical records that
were as accurate as possible within the frustrating limitations of the electronic medical
records system. Dr. Acosta’s testimony—that if he had been told about significant
problems, he would have documented them—is credited.
3. Dr. Acosta’s notes indicate that Ms. Rodrigue or her husband told him she was having
“chronic pain.” This report is consistent with her long-standing cervical and lumbar
issues. Ms. Rodrigue’s ongoing chronic pain also can explain why Mr. Rodrigue
2
Dr. Acosta was Ms. Rodrigue’s doctor for her diabetes. See exhibit 7 at 26 (April 5,
2016 appointment). She missed her regularly scheduled appointment on October 25, 2016.
Exhibit 7 at 13-14. Consistent with this history, Dr. Acosta stated that the critical January 11,
2017 appointment appeared to be for routine care. However, Mr. Rodrigue testified that the
appointment was scheduled to address Ms. Rodrigue’s acute needs. The only acute need noted
by Dr. Acosta was recurrent nose bleeds. Exhibit 7 at 4. Determining the purpose of this
appointment is not necessary to determine when Ms. Rodrigue’s more significant neurologic
pain began.
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purchased a neck and shoulder wrap at Walgreens a few days after Thanksgiving (exhibit
24) and why Ms. Rodrigue wore a homemade sling at Christmas (exhibit 25).
4. On January 18, 2017, and January 23, 2017, Ms. Rodrigue saw Nurse Practitioner
Saavedra for, predominantly, cough and congestion. Exhibit 15. Ms. Saavedra
diagnosed Ms. Rodrigue as suffering from sinusitis and bronchitis. Id. at 10.3 Neither
Ms. Rodrigue nor her daughter who accompanied her to this appointment communicated
that Ms. Rodrigue was having such significant problems walking that Ms. Rodrigue
required assistance from the fire department to leave her house.
a. The lack of a complaint from Ms. Rodrigue or her daughter at both appointments
is significant because if Ms. Rodrigue were experiencing significant problems in
conducting usual activities like walking, bathing, or toileting, then someone
would have communicated these problems during these encounters with a medical
professional.
b. Notations in the records from Ms. Saavedra that Ms. Rodrigue denies neurologic
problems such as gait abnormality (exhibit 15 at 4, 8) carry less weight. As Dr.
Acosta explained with respect to his medical records, determining which parts of
an electronic medical record reflect information communicated to and recorded by
a medical professional is difficult. For Ms. Saavedra’s medical record, the
evidence is not clear whether comments such as “denies gait abnormality” reflects
a default entry in an electronic medical record. However, to the extent that the
electronic medical records from Ms. Saavedra’s office can be given any weight,
the notation is consistent with an onset after January 23, 2017.
5. Ms. Rodrigue saw Dr. Trahant on March 8, 2017. Dr. Trahant recorded the following
history: “[1] In mid-January, she had pneumonia and the flu, and [2] one week later she
received a pneumonia vaccine and a flu vaccine. [3] One week later after receiving the
vaccines, she developed generalized weakness, first in her legs, and then in her upper
extremities. [4] She also started with severe burning in her hands and her feet.” Exhibit
16 at 4. The history recorded by Dr. Trahant is not entirely accurate.
a. For sentence [1], it appears that Ms. Rodrigue was not diagnosed as suffering
from pneumonia and the flu. See footnote 3 above. The undersigned recognizes
that people who are not medical professionals might use “pneumonia” or “the flu”
to describe a respiratory ailment when a medical professional might use a
different term, such as “sinusitis” or “bronchitis.” It is accurate to say that in mid-
January, Ms. Rodrigue suffered from sinusitis and bronchitis.
b. For sentence [2], Ms. Rodrigue did not receive the pneumonia vaccine and the flu
vaccine at the same time. Ms. Rodrigue received the flu vaccine on November 1,
2016. Exhibit 3. She also received a dose of the Prevnar vaccine at Dr. Acosta’s
3
Although Mr. Rodrigue and other witnesses stated that Ms. Saavedra diagnosed Ms.
Rodrigue as also suffering from the flu and pneumonia, the documentary basis for this testimony
is not readily apparent within exhibit 15.
3
office on January 11, 2017. Exhibit 7 at 4-6. Regardless, the Prevnar vaccination
was one week before (not week after) Ms. Rodrigue developed respiratory
problems.
c. For sentence [3], the statement “one week after receiving the vaccines” cannot be
accurate in that Ms. Rodrigue did not receive two vaccines (plural) at the same
time. As explained above, it is also not likely that Ms. Rodrigue developed
generalized weakness “one week” after the Prevnar vaccine because if she had,
Ms. Rodrigue would have communicated this problem to Ms. Saavedra. Instead,
the more likely explanation is that Ms. Rodrigue developed generalized weakness
approximately one week after having respiratory problems.
d. For sentence [4], this sentence is accurate. In addition to having generalized
weakness, Ms. Rodrigue also experienced a burning feeling in her hands and feet.
6. Mr. Rodrigue adequately explained the delay in treatment from the end of January to
beginning of March. Although Ms. Rodrigue first started to experience a significant
deterioration in her neurologic functioning on January 30, 2017, she saw Dr. Trahant on
March 8, 2017. This delay in treatment is approximately 5.5 weeks.
a. Ms. Rodrigue and her husband may have been slow to realize that the generalized
weakness differed from previous cervical and lumbar issues as well as any
weakness caused by her sinusitis and bronchitis.
b. Scheduling an appointment with Dr. Trahant may have taken some time, in part,
because Dr. Trahant may have been out of his office during a portion of the Mardi
Gras season in February 2017.
7. Dr. Trahant’s August 15, 2018 letter (exhibit 27) carries little evidentiary weight. Dr.
Trahant did not record information in context of providing medical services. The letter is
directed toward litigation. While Dr. Trahant accepted the accuracy of information
contained in affidavits, this task is ultimately for the special master as finder of fact. See
Burns v. Sec’y of Health & Human Servs., 3 F.3d 415 (Fed. Cir. 1993). Furthermore,
before preparing his August 15, 2018 letter, Dr. Trahant did not consider other sources of
information such as Dr. Acosta’s January 11, 2017 report or the notes from Ms.
Saavedra’s January 2017 appointments.
A status conference to discuss these tentative findings of fact is scheduled for Monday,
November 4, 2019, at 2:00 P.M. Eastern Time. If the parties retain any witnesses to opine
about causation, the parties must present this Tentative Ruling to any potential experts. See
Burns, 3 F.3d 415.
Any questions may be directed to my law clerk, Andrew Schick, at (202) 357-6360.
IT IS SO ORDERED.
s/Christian J. Moran
Christian J. Moran
Special Master
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