BRIAN H. CORCORAN, Chief Special Master.
On August 27, 2018, Franklin Gallo filed a petition for compensation under the National Vaccine Injury Compensation Program,
For the reasons discussed below, I find that the Tdap vaccine alleged as causal was administered in Petitioner's left deltoid on September 5, 2017.
After filing his petition, Petitioner filed medical records, an affidavit, and a Statement of Completion. ECF Nos. 7, 12-14. At the initial status conference, it was noted that Petitioner's affidavit references communications from Petitioner to the Veterans Administration regarding his previous attempts to correct his September 5, 2017 vaccination record.
On June 13, 2019, Respondent filed a status report and Motion to Dismiss ("Res. Motion"). ECF Nos. 19-20. Respondent asserted that Petitioner's claim concerns a vaccine not covered by the Vaccine Act. Res. Motion at 1. Specifically, Respondent observed that Petitioner alleged that he suffered a SIRVA after receiving a Tdap vaccination in his left shoulder on September 5, 2017. Id. However, Respondent noted that Petitioner's vaccination record documents that Petitioner was administered a Tdap vaccine in his right deltoid, and a non-covered Pneumovax vaccine in his left deltoid. Id. at 1-2. Additionally, Respondent cited a letter addressed to Petitioner from the Veterans Administration noting that Petitioner's vaccination record is accurate in its current form. Id. at 2. Based on this evidence, Respondent argued that Petitioner's claim must be dismissed due to lack of jurisdiction or for failure to state a claim on which relief can be granted. Id. at 2-3.
Petitioner filed a Response to Respondent's Motion to Dismiss ("Pet. Response") on June 27, 2019, addressing Respondent's arguments and asserting that Petitioner has provided sufficient evidence to establish that the Tdap vaccine was administered in his left deltoid.
On July 31, 2019, an order was issued denying Respondent's Motion to Dismiss because it was found that there is a genuine factual dispute as to the site of Petitioner's September 5, 2017 Tdap vaccination.
On August 28, 2019, Respondent filed a status report ("Res. Status Report") in which he reiterated his previous position that Petitioner failed to establish that he received a Tdap vaccine in his left arm on September 5, 2017. Res. Status Report at 1. Initially, Respondent asserted that Petitioner had not provided evidence that he has the necessary qualifications—e.g., medical background or training—to distinguish between the Tdap and Pneumovax vaccines, which are both administered intramuscularly. Id. at 1-2. Furthermore, Respondent noted that Petitioner's post-vaccination statements regarding the situs of his Tdap vaccination are based on his recollection alone. Id. at 2. Because these later references are "not contemporaneous documentation by vaccine administrators," Respondent argued that they "deserve little weight with regard to establishing the site of vaccination." Id. Finally, Respondent observed that this case involves a vaccination record that is contrary to Petitioner's claims, plus a subsequent letter from the Veterans Administration noting that Petitioner's vaccination record is accurate in its current form. Id. at 2-3. Respondent argued that Petitioner has not established that his own recollection is more reliable than the aforementioned records regarding the site of administration. Id.
On August 30, 2019, Petitioner filed additional medical records and affidavits from four acquaintances.
At issue is whether Petitioner received the Tdap vaccination alleged as causal in the injured left arm.
Pursuant to Vaccine Act § 13(a)(1)(A), a petitioner must prove, by a preponderance of the evidence, the matters required in the petition by Vaccine Act § 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. § 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." Curcuras v. Sec'y of Health & Human Servs.,
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,
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.,
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,
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,
For the reasons discussed below, I find that the Tdap vaccine alleged as causal was administered in Petitioner's left deltoid on September 5, 2017, as Petitioner alleges. I make this finding after a complete review of the record to include all medical records, affidavits, and additional evidence filed. Specifically, I base the finding on the following evidence:
In making the above finding regarding situs, I note that special masters have found that vaccine administration occurred, or was incorrectly recorded, even in the absence of direct documentation, based upon other medical records and/or witness testimony. More broadly, witness testimony can be used to overcome the presumption of accuracy afforded to contemporaneous medical records, if the testimony is "consistent, clear, cogent, and compelling." Camery,
Based upon my review of the record, I find that Petitioner has established by preponderant evidence that he received the Tdap vaccine in his left arm. There is no doubt that the primary evidence of vaccination documents Mr. Gallo's right arm as the situs of the Tdap vaccination. In many cases, such a document would resolve the dispute. But I find that this entry specifying administration is rebutted by Petitioner's contemporaneous medical records, as well as his own recollection of the actual situs, which together are sufficiently "clear, cogent, and compelling" to overcome the available vaccination record.
In particular, Petitioner has provided a reasonable explanation for why he would have recalled the arm in which the Tdap vaccine was administered. As described above, Petitioner had suffered an adverse reaction to a tetanus-diphtheria vaccination as a child, which led to significant medical complications.
Petitioner requested that the Tdap vaccine be administered in his left arm because it is his nondominant arm. Pet. Ex. 9 at ¶ 2. Moreover, Petitioner stated in his affidavit that he was informed, at the time of the vaccination, that the Tdap vaccine was about to be administered in his left arm. Id. Accordingly, Petitioner asserted that he was cognizant of the arm in which the Tdap vaccine was being administered during the September 5, 2017 medical appointment. Id.
I note that the vaccination record contains differing entries regarding the administration of the Tdap and Pneumovax vaccines. Under the Tdap vaccine, Petitioner was noted to have "requested and received [the vaccine] intramuscular[ly] in the right deltoid." Pet. Ex. 1 at 4 (emphasis added). Under the Pneumovax vaccine, however, Petitioner was noted only to have "received [the vaccine] [intramuscularly] today in Left Deltoid." Id. (emphasis added).
I find the use of the phrase "requested and received" in describing one vaccine (the Tdap), but not the other (Pneumovax) significant under the circumstances. Petitioner has persuasively established he had a reasonable concern in specifying the arm for administration of the Tdap vaccine. The inclusion of both "requested" and "received" under the Tdap vaccine suggests that Petitioner requested the arm in which the Tdap (but not Pneumovax) vaccine would be administered. Given that Petitioner is right-handed and has alleged a prior adverse reaction to a tetanus vaccine, I find the evidence supports the conclusion that Petitioner requested that the Tdap vaccine be administered in his left nondominant arm, but that the request and subsequent administration were incorrectly recorded in his medical records.
Respondent has argued that Petitioner has not provided evidence that he has qualifications—e.g., medical background or training—to distinguish between the Tdap and Pneumovax vaccines, which are both administered intramuscularly. Res. Status Report. at 1-2. I find, however, that a lack of additional qualifications is not dispositive in this case. Indeed, as indicated above, Petitioner stated in his affidavit that he was informed, at the time of the vaccination, that the Tdap vaccine was about to be administered in his left arm. Pet. Ex. 9 at ¶ 2. Moreover, Petitioner's contemporaneous medical records—including from the day following the vaccination—specifically tie Petitioner's left shoulder symptoms to the Tdap vaccination and are thus corroborative of his allegations.
The facts of this case present a close call on the issue of situs. Based upon my review of the entire record, however, I find there is preponderant evidence to establish that the Tdap vaccine alleged as causal in this case was administered to Petitioner in the left deltoid on September 5, 2017.
Respondent shall file a status report, by no later than
