CHRISTIAN J. MORAN, Special Master.
On May 24, 2013, Stacy and William Boula filed a petition under the National Vaccine Injury Compensation Program (the "Vaccine Act" or "Program"), 42 U.S.C. § 300aa-10 through 34 (2006). In their petition, the Boulas alleged that the human papillomavirus ("HPV") vaccine and/or hepatitis B vaccine caused their daughter, Stephanie, to suffer an autoimmune disorder and associated undifferentiated connective tissue disease. Pet. at ¶¶ 26, 28. The Boulas filed an amended petition on June 5, 2013, which contained similar allegations. Am. Pet. at ¶¶ 28, 30.
The records are not consistent about the details of Stephanie's illness. There is uncertainty about what symptoms Stephanie experienced and when she had them. Furthermore, during litigation, Mrs. Boula's position changed.
When special masters are confronted with discrepancies among medical records and affidavits, special masters are encouraged to hold a hearing to evaluate the testimony of the affiants.
In lieu of presenting testimony, the parties filed Joint Proposed Findings of Fact. In their filing, the parties asked for findings on two points: (1) the nature of Stephanie's symptoms, and (2) when Stephanie's symptoms began. Joint Proposed Findings of Fact, filed Feb. 10, 2014, at ¶¶ 17-18 ("Proposed Findings"). The parties anticipate how these facts will affect petitioners' claim, reserving the right to retain expert witnesses should the claim proceed.
Under the Vaccine Act, petitioners are required to establish their cases by a preponderance of the evidence. 42 U.S.C. § 300aa-13(1)(a). The preponderance of the evidence standard requires a "trier of fact to believe that the existence of a fact is more probable than its nonexistence before [he] may find in favor of the party who has the burden to persuade the judge of the fact's existence."
The process for finding facts in the Vaccine Program begins with analyzing the medical records, which are required to be filed with the petition. 42 U.S.C. § 300aa-11(c)(2).
Not only are medical records presumed to be accurate, they are also presumed to be complete in the sense that the medical records present all the health problems of the patient. Completeness is presumed due to a series of propositions. First, when people are ill, they see a medical professional. Second, when ill people see a doctor, they report all of their health problems to the doctor. Third, having heard about the symptoms, the doctor records what he or she was told.
Appellate authorities have accepted the reasoning supporting a presumption that medical records created contemporaneously with the events being described are accurate and complete. A notable example is
However, the presumption that contemporaneously created medical records are accurate and complete is rebuttable. For cases alleging a condition found in the Vaccine Injury Table, special masters may find when a first symptom appeared, despite the lack of a notation in a contemporaneous medical record. 42 U.S.C. § 300aa-13(b)(2). By extension, special masters may engage in similar fact-finding for cases alleging an off-Table injury. In such cases, special masters are expected to consider whether medical records are accurate and complete. To overcome the presumption that written records are accurate, testimony is required to be "consistent, clear, cogent, and compelling."
In determining the accuracy and completeness of medical records, special masters will consider various explanations for inconsistencies between contemporaneously created medical records and later given testimony. The Court of Federal Claims listed four such explanations. The Court noted that inconsistencies can be explained by: (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.
In weighing divergent pieces of evidence, special masters usually find contemporaneously written medical records to be more significant than later-presented testimony.
The submitted evidence is summarized below in two sections: Stephanie's relevant medical records followed by petitioners' three affidavits, two from Mrs. Boula and another from Stephanie.
On March 11, 2010, Stephanie was seen at Long Pond Pediatrics for a well visit. Exhibit 2 at 58. Stephanie did not present with any complaints.
On May 24, 2010 at 3:29 P.M., Mrs. Boula called Long Pond Pediatrics and scheduled an appointment for that same day at 4:30 P.M. Exhibit 21 at 2. During that appointment, Stephanie reported that she had a sore throat that "started today" and that the "onset was sudden." Exhibit 2 at 60. Upon examination, Dr. Mary Anne Kiernan noted that Stephanie's tonsils were "moderately erythematous and ulcerated."
By May 31, 2010, Stephanie continued to complain of a sore throat, and her mother took her to the emergency room at Rochester Memorial Hospital. Exhibit 5 at 2. Stephanie was seen by Dr. Geoffrey Everett and reported "[a] sore throat [lasting] for 8 days, blisters to tonsils, had neg throat culture last Mon., still having pain, unable to eat, taking fluids, blisters getting worse, no fever."
After seven intervening doctors' visits for various problems between September 29, 2010 and December 22, 2010 (exhibit 2 at 62-68; exhibit 4 at 1-4; exhibit 5 at 16-26), on December 28, 2010, Stephanie went to Long Pond Pediatrics complaining of shin pain that had lasted "since September." Exhibit 2 at 69. Additionally, Stephanie reported stomach bloating, headaches, "ringing in ears," and that she was "very tired despite good sleep last night."
On January 4, 2011, Stephanie went to see David Siegel, a pediatric rheumatologist. Exhibit 6 at 1. Stephanie reported fatigue and multiple aches and pains "ongoing since this spring."
Mrs. Boula remained concerned about Stephanie's worsening symptoms.
After seven appointments for other ailments between October 2011, and May 2012 (exhibit 5 at 33-44; exhibit 7 at 3-4; exhibit 13 at 5-6, 10-26), on May 30, 2012, Stephanie saw Dr. Arango for a follow-up visit. Exhibit 7 at 5, 7. Dr. Arango indicated that Stephanie had "an undifferentiated connective tissue disease." The Boulas allege the vaccinations in May 2010, caused Stephanie to suffer this condition.
In support of their allegations, the Boulas filed two affidavits from Mrs. Boula, dated May 20, 2013 (exhibit 14), and November 7, 2013 (exhibit 20), and one affidavit from Stephanie Boula, dated November 7, 2013 (exhibit 19). These affidavits are not entirely consistent with one another.
In her first affidavit, Mrs. Boula averred that Stephanie's sore throat started "approximately two days after vaccination." Exhibit 14 at ¶ 9, dated May 20, 2013. Thus, Mrs. Boula's statement presents a problem for determining the onset of Stephanie's sore throat. Stephanie received two vaccinations, one each on consecutive days. Additionally, Mrs. Boula stated that Stephanie's sore throat lasted for two days before she took her to Dr. Kiernan's office.
However, in her second affidavit, Mrs. Boula averred that she was "mistaken when [she] stated in her May 20, 2013 affidavit that `. . . two days after being vaccinated Stephanie began to complain of a sore throat and headache. I took Stephanie to the doctor's two days later when the sore throat had not resolved.'" Exhibit 20 at ¶ 8 (aff., dated Nov. 7, 2013). She further asserted that "[her] May 20, 2013 affidavit was based on my recollection of almost 3 years earlier. I did not have a calendar or diary of events to assist my recollection."
Additionally, in Stephanie's affidavit filed concurrently with Mrs. Boula's second affidavit, Stephanie denied experiencing any adverse reaction or symptoms after her first HPV vaccine on March 11, 2010. Exhibit 19 at ¶ 4 (aff. dated Nov. 7, 2013). Stephanie stated that she began experiencing a sore throat on May 24, 2010, worsening throughout the day, and she had a headache.
Despite the discrepancies among the affidavits and medical records, the Boulas assert that the contemporaneous records of Dr. Kiernan from May 24, 2010, indicate that the onset of Stephanie's first symptoms occurred on May 24, 2010. Thus, the Boulas argue that these records are the best evidence of the date of onset of her sore throat. Proposed Findings at ¶ 15.
The Secretary identifies three potential dates for the onset of Stephanie's autoimmune disease. As evidence in support of an onset date in late March 2010, the Secretary cited the medical records from Stephanie's January 4, 2011 visit to the rheumatologist, Dr. Siegel. Resp't's Rep't, filed Aug. 20, 2013, at 14 (Dr. Siegel noted that Mrs. Boula felt that Stephanie's symptoms began two weeks after she received the March 11, 2010 HPV vaccination). In the alternative, the Secretary argued that if the medical record from May 31, 2010, was precisely accurate, "eight days earlier" would place the onset of Stephanie's symptoms on May 23, 2010.
Although some evidence suggests that Stephanie was having problems in March 2010, the more persuasive information indicates that she was not. In the medical history from Stephanie's January 4, 2011 visit, Dr. Siegel indicated that Stephanie had fatigue and multiple aches and pains, beginning in spring 2010. However, there are no medical records in spring 2010 to support Dr. Siegel's history.
Dr. Siegel relied on Mrs. Boula's memory to learn and to document Stephanie's medical history.
Stephanie was experiencing pain in her throat and headaches in May 2010. Although Stephanie complained that she had "blistered tonsils" and "worsening blisters," neither Dr. Kiernan nor the medical staff at Rochester Memorial Hospital indicated that Stephanie's tonsils were blistered. In fact, the notes from the hospital specifically state that Stephanie's tonsils appeared "normal," although her posterior pharynx was erythematous.
The medical record on May 24, 2013, carries more weight than the May 31, 2013 record. On May 24, 2013, it was easy for Stephanie to indicate whether the sore throat began "today" or "yesterday." Stephanie reported that her sore throat began "today." Exhibit 2 at 60. In contrast, on May 31, 2013, the record of whether the sore throat began seven days or eight days or nine days prior is probably less important to a historian or record-taker. When Stephanie spoke to the Dr. Everett at Rochester Memorial Hospital on May 31, 2010, she could have been estimating when she said "eight days." Therefore, Stephanie's symptoms began on May 24, 2010.
The parties are ordered to provide these Findings of Fact to any expert whom they may retain to offer an opinion in this case. An expert's assumption of any fact that is inconsistent with these Findings of Fact will not be credited.
A status conference is set for
