A May 2021 ruling by the U.S. Court of Appeals of the Federal Circuit did more than just reinstate damages for the plaintiff of a vaccine injury case. Pivotally, the ruling also addressed the precedent and presumption of medical records being “accurate and complete as to all of the patient’s physical conditions.”
In ruling on this key issue, the Federal Appeals Court may have opened the door for new challenges and questions regarding the veracity of medical records used as evidence in tort litigation.
Background on the Case: The Vaccine Injury
The case at the center of this noteworthy ruling, Kirby v. Secretary of Health and Human Services (involves allegations of injury resulting from an influenza vaccine, commonly referred to as a flu shot. On October 8, 2013, the 40-year-old plaintiff received the influenza vaccine in her right arm. According to the complaint, the plaintiff experienced numbness, tingling, and pain in her right arm immediately after the injection. A week later, she was diagnosed with vaccine complications and radial neuritis.
The plaintiff underwent physical therapy and had two follow-up doctor’s visits in November and December 2013, after which her physician determined that maximum medical improvement (MMI) had been reached.
Over the next year and a half, from January 2014 through July 2015, the plaintiff sought medical treatment for health issues that were not related to her alleged vaccine injury. During those visits, the plaintiff had “no complaints” about her arm and reported “feeling fine,” according to her medical records. However, she did complain of “mild and intermittent pain” in her right arm during an October 2015 visit. At that time, the plaintiff explained that she “did not have any limitations” or muscle weakness due to the pain, which had “decreased tremendously” since the 2013 shot.
Subsequently, the plaintiff filed a claim for compensation under the Vaccine Act, 42 U.S.C. § 300aa–1 et seq. Her claim was approved for damages by the Special Master.
Claims Court Reverses Award of Damages
After damages were approved for the plaintiff’s vaccine injury claim, the government submitted a Motion for Review to the Claims Court, requesting a reversal of the Special Master’s finding. In its motion, the government alleged that the Special Master’s finding that the vaccine injury had lasted more than six months was “arbitrary and capricious.”
Agreeing with this argument, the Claims Court reversed the Special Master’s award of damages. The plaintiff appealed this decision, filing her appeal on July 27, 2020.
Federal Appellate Court Reinstates Damages, Rejects Presumption of Accuracy for Medical Records
On May 20, 2021, the Federal Appellate Court issued a ruling on the plaintiff’s appeal, reversing the Claims Court’s decision and reinstating the compensation award from the Special Master. In its opinion, the Court explained that:
It was not arbitrary and capricious for the Special Master to find that Ms. Kirby’s vaccine injury lasted more than six months. The Special Master based his finding on plausible evidence, i.e., Ms. Kirby’s lay testimony, corroborating documentation, and expert testimony.
Elaborating on the Claims Court’s decision, the Federal Appellate Court noted that:
In reversing, the Claims Court applied a presumption that Ms. Kirby’s medical records are “accurate and complete” to conclude that her testimony could not support a finding of persistence of symptoms for six months. The Claims Court reasoned that because Ms. Kirby’s medical records from January 2014 through July 2015 are silent about her vaccine injury and indicate she was “feeling fine,” they undermine her testimony that she continued to experience symptoms during this period.
This presumption that medical records are accurate and complete, the Federal Appellate Court pointed out, was based on precedent set by Robi v. Secretary of Health & Human Services (Case No. 12-352V) and Cucuras v. Secretary of Health & Human Service, 993 F.2d 1525, 1528, which relied on “a series of propositions.” Those propositions included that:
- People visit a doctor when they are ill.
- People report all their medical problems during doctors’ visits.
- The health care professional records everything a patient reports in the medical records.
In its precedential opinion, the Court clarified:
We reject the Robi presumption that medical records are accurate and complete as to all the patient’s physical conditions. Nothing in Cucuras supports either the presumption or Robi’s ‘series of propositions… We reject as incorrect the presumption that medical records are accurate and complete as to all the patient’s physical conditions. Although a patient has a “strong motivation to be truthful” when speaking to his physician, see FED. R. EVID. 803 advisory committee’s note to 1975 enactment, that does not mean he will report every ailment he is experiencing, or that the physician will accurately record everything he observes. A patient having a heart attack is not likely to mention his runny nose, nor is his physician likely to record it. As the Claims Court has recognized, physicians may enter information incorrectly and “typically record only a fraction of all that occurs.” Shapiro v. Sec’y of Health & Human Servs., 101 Fed. Cl. 532, 538 (2011) (citing Murphy v. Sec’y of Health & Human Servs., 23 Cl. Ct. 726, 733 (1991)). We see no basis for presuming that medical records are accurate and complete even as to all physical conditions.
Without relying on the presumption, the Federal Appellate Court ruled that the Special Master had not made an “arbitrary and capricious” finding when awarding the plaintiff compensation for her vaccine injury claim. As a result, the Federal Appellate Court reversed the Claims Court’s decision and reinstated damages for the plaintiff’s original claim. With its ruling, the Federal Court also set a new precedent that could reshape the way medical records are used to prove injury in future tort cases.
