In its opinion filed on May 20, 2021, the United States Court of Appeals for the Federal Circuit (“Federal Appellate Court”) stated: “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.”
Vaccine Court Case
The plaintiff appealed a decision of the United States Court of Federal Claims reversing a special master’s ruling that she is entitled to damages under the Vaccine Act. The plaintiff had received a flu shot in her right arm on October 8, 2013. One week later, she visited a nurse practitioner and complained of persistent arm pain, numbness, and tingling that began immediately after the injection. A doctor who examined the plaintiff on October 16, 2013 noted that the plaintiff described the pain as “moderate” and complained of reduced muscle strength. The doctor diagnosed the plaintiff with radial neuritis and complications due to vaccination.
From January 2014 to July 2015, the plaintiff visited the nurse practitioner five times for reasons unrelated to her vaccine injury and generally reported “feeling fine.” The plaintiff visited the nurse practitioner for the last time on October 13, 2015 when she complained of mild and intermittent pain in her right arm, reporting that the pain had “decreased tremendously” since her 2013 flu shot, that she did not have any limitations due to the pain, and that she did not have any muscle weakness.
The plaintiff petitioned the Claims Court for compensation under the Vaccine Act, 42 U.S.C. § 300aa–1 et seq. The special master ruled that the plaintiff was entitled to such compensation. The Claims Court reversed, and the plaintiff appealed.
Federal Appellate Court Opinion
In Vaccine Act cases, the Federal Appellate Court reviews the Claims Court’s decision de novo, applying the same standard of review it applies in reviewing the special master’s decision, reviewing the special master’s legal conclusions de novo and his findings of fact under an arbitrary and capricious standard.
The Federal Appellate Court held: “It was not arbitrary and capricious for the special master to find that Ms. Kirby’s vaccine injury lasted more than six months … We see no basis for presuming that medical records are accurate and complete even as to all physical conditions. In the absence of this presumption, a reasonable fact finder could conclude that Ms. Kirby’s medical records from January 2014 through July 2015 do not conflict with her testimony. Although these medical records are silent about the existence of any lingering symptoms, they are also silent about the nonexistence of such symptoms. This case is therefore distinct from Cucuras, where the petitioners said one thing to their physician and another thing to the special master … Accordingly, it was not arbitrary and capricious for the special master to find no conflict between Ms. Kirby’s testimony and the lack of a reference to her vaccine injury in the medical records from January 2014 through July 2015 … Nor are Ms. Kirby’s various statements that she was “feeling fine” with “no complaints” inconsistent with her testimony. J.A. 91, 102, 106, 110. Those statements are general in nature and do not necessarily mean she was in perfect health. Indeed, Ms. Kirby also reported joint pain, depression, anxiety, and other ailments during those visits. J.A. 92, 103, 107, 111. Thus, the special master’s determination that there is no conflict between Ms. Kirby’s testimony and her reports of “feeling fine” was not arbitrary and capricious.”
“Because a reasonable fact finder could conclude that Ms. Kirby’s testimony is not inconsistent with her medical records from January 2014 through July 2015, it was not arbitrary and capricious for the special master to credit that testimony in finding that Ms. Kirby’s vaccine injury lasted more than six months. Accordingly, we reverse the Claims Court’s decision.”
Source Kirby v. Secretary of Health and Human Services, Case: 20-2064.
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