Muller v. Secretary of Health and Human Services
14-801
| Fed. Cl. | May 30, 2017Background
- Petitioner Nicole Muller filed a Vaccine Act claim on behalf of her minor daughter A.M., alleging Guillain–Barré syndrome (GBS) caused by an influenza vaccination administered on December 28, 2011 (initially also alleged a November 1, 2011 dose).
- CHOP/CHOP Care Network medical records, billing records, and provider notes document A.M. receiving an intranasal FluMist on November 1, 2011, with multiple contemporaneous entries and billing for that date.
- No contemporaneous record documents a December 28, 2011 office visit or vaccination for A.M.; the only December evidence is a standalone height/weight entry and an isolated, blank December 1, 2011 encounter labeled "PROVIDER MTL NURSE FLU."
- Petitioner’s mother submitted two inconsistent affidavits and testified inconsistently at a fact hearing (initially asserting two doses, later asserting only a December 28, 2011 dose); petitioner’s grandmother offered only vague recollection.
- CHOP witnesses (Dr. Bernstein, nurse Fox-Sulitzer) testified A.M. was vaccinated on November 1, 2011 and was not seen in the practice in December 2011; CHOP records custodian testified the electronic record production was complete and that timestamps may not reflect actual entry dates.
- The Special Master held an evidentiary hearing, weighed contemporaneous records versus later recollections, and found the preponderance of evidence supports a November 1, 2011 vaccination and not any December 2011 vaccination.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Date of A.M.’s 2011 influenza vaccination | Muller: A.M. received a single vaccine on Dec. 28, 2011 (and not Nov. 1) — later affidavits and testimony assert Dec. 28 as the date tied to onset of GBS | Respondent: Contemporaneous CHOP records, billing, and provider testimony establish vaccination on Nov. 1, 2011; no contemporaneous evidence of any Dec. 2011 vaccination | Held: Preponderant evidence shows vaccination occurred Nov. 1, 2011; no preponderant evidence of vaccination on Dec. 28 or any Dec. date |
| Weight of contemporaneous medical records vs. later testimony | Muller: Maternal recollection and VAERS entry support Dec. 2011 date | Respondent: Contemporaneous records are more reliable; later histories/affidavits carry less weight and are inconsistent | Held: Contemporaneous records and provider testimony credited over inconsistent later affidavits/testimony |
| Whether A.M. received two doses in 2011 | Muller: Initially alleged two-dose series (Nov. 1 and Dec. 28) | Respondent: Medical practice and history indicate only single dose needed after prior immunizations; providers deny second dose given | Held: No evidence supports a medically-necessary or actual second dose in Dec. 2011; single Nov. 1 dose found |
| Sufficiency of record production/search | Muller: Sought subpoenas and further records, alleging CHOP produced incomplete records | Respondent/CHOP: Records custodian testified production was complete and no additional paper records exist | Held: Record production deemed complete after custodian testimony; further searches not required |
Key Cases Cited
- Cucuras v. HHS, 993 F.2d 1525 (Fed. Cir. 1993) (contemporaneous medical records generally trustworthy and entitled to significant weight)
- Reusser v. HHS, 28 Fed. Cl. 516 (1993) (written contemporaneous documentation often more reliable than later recollection)
- Murphy v. HHS, 23 Cl. Ct. 726 (1991) (absence of a reference in medical records is less significant than a contemporaneous negation; records record only a fraction of events)
- In re Winship, 397 U.S. 358 (1970) (preponderance standard requires a fact be more probable than not)
- United States v. United States Gypsum Co., 333 U.S. 364 (1948) (oral testimony conflicting with contemporaneous documents has limited evidentiary weight)