Filed: Oct. 17, 2014
Latest Update: Oct. 17, 2014
Summary: CHRISTIAN J. MORAN, Special Master. Findings of Fact 1 Ms. Olszewski alleges that a tetanus vaccination, given on May 13, 2011, led to her developing irritable bowel syndrome. Although a medical record documents the vaccination in May 2011, the earliest medical record describing gastrointestinal problems was created on December 18, 2011, seven months later. The parties differ regarding when the symptoms associated with irritable bowel syndrome began. Ms. Olszewski's position is the onset oc
Summary: CHRISTIAN J. MORAN, Special Master. Findings of Fact 1 Ms. Olszewski alleges that a tetanus vaccination, given on May 13, 2011, led to her developing irritable bowel syndrome. Although a medical record documents the vaccination in May 2011, the earliest medical record describing gastrointestinal problems was created on December 18, 2011, seven months later. The parties differ regarding when the symptoms associated with irritable bowel syndrome began. Ms. Olszewski's position is the onset occ..
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CHRISTIAN J. MORAN, Special Master.
Findings of Fact1
Ms. Olszewski alleges that a tetanus vaccination, given on May 13, 2011, led to her developing irritable bowel syndrome. Although a medical record documents the vaccination in May 2011, the earliest medical record describing gastrointestinal problems was created on December 18, 2011, seven months later.
The parties differ regarding when the symptoms associated with irritable bowel syndrome began. Ms. Olszewski's position is the onset occurred between May 26, 2011 and June 7, 2011. The Secretary's stance is the onset occurred between November 10, 2011 and December 11, 2011.
To resolve the apparent discrepancy between the lack of medical records created in the latter half of 2011 and Ms. Olszewski's affidavit, a hearing was held. Ms. Olszewski and her husband testified. Following the hearing, Ms. Olszewski filed additional information, including an email to her sister created on June 7, 2011. Exhibit 19.
The parties set forth their positions in briefs filed after the hearing. Thus, the matter is ready for adjudication according to the established criteria for finding facts. See Hesse v. Sec'y of Health & Human Servs., No. 13-177V, 2014 WL 2038252, at *1-3 (Fed. Cl. Spec. Mstr. April 22, 2014).
Preponderant evidence establishes that Ms. Olszewski started having significant gastrointestinal problems, including urgency, soft and messy stools, as well as gas, on June 1, 2011. The evidence supporting this finding includes:
a. Dr. White's May 26, 2011 report that does not indicate any problems with Ms. Olszewski's gastrointestinal system;
b. Mr. Olszewski's testimony that his wife's symptoms started roughly a week after she returned to their home in Buffalo on May 20, 2011. Tr. 14-20.
c. Ms. Olszewski's testimony that her symptoms started between May 20, 2011 and June 1, 2011. Tr. 33, 79, 96.
d. Ms. Olszewski's June 7, 2011 email to her sister inquiring about bowel problems.2 Exhibit 19.
Against this evidence, the Secretary primarily points to the November 10, 2011 report of Ms. Olszewski's gynecologist, Dr. Allen, that appears to indicate that Ms. Olszewski's gastrointestinal system was normal. Exhibit 2 at 14. Although Dr. Allen's record is valuable, the Secretary's reliance on this document is not persuasive. Ms. Olszewski testified that she did not speak to her gynecologist about gastrointestinal issues. Tr. 56, 88. Furthermore, the details about Ms. Olszewski's systems in Dr. Allen's record from 2011 duplicates his record from 2010. Compare exhibit 2 at 14 with exhibit 2 at 23. This repetition calls into question the accuracy of some of the information recorded in Dr. Allen's computerized medical record.
In short, the better evidence supports a finding between May 26, 2011 and June 7, 2011. Within this range, June 1, 2011 is selected as the date Ms. Olszewski started to experience significant gastrointestinal problems.
The parties ARE ORDERED to provide this finding of fact to any expert whom they retain. An expert's assumption of any fact that is inconsistent with these Findings of Fact will not be credited. Burns v. Sec'y of Health & Human Servs., 3 F.3d 415, 417 (Fed .Cir. 1993) (holding that the special master did not abuse his discretion in refraining from conducting a hearing when the petitioner's expert "based his opinion on facts not substantiated by the record").
A status conference will be held on Monday, November 3, 2014 at 10:00 A.M. Eastern time. Ms. Olszewski should be prepared to discuss her proposed next steps for this case.
IT IS SO ORDERED.
