In National Vaccine Injury Compensation cases with conflicting evidence, the court looks at the entirety of the record when determining a claimant's entitlement to compensation.
Dixon v. Secretary of Health and Human Services
Case at a glance:
SYMPTOMS:
INJURY: SIRVA
VACCINE: flu and pneumonia shots (influenza & pneumococcal conjugate vaccines)
VACCINATION DATE: 12/7/2017
ADMINISTRATOR: Rite Aid
INJURY DURATION: over 1 year and 3 months
CASE DURATION: still ongoing since 12/3/2020
OUTCOME: case ongoing
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Ms. Dixon Suffers Flu Shot Side Effects, Including a SIRVA Shoulder Injury from Botched Flu Shot
On December 7, 2017, Ms. Dixon received two vaccinations, a flu shot and a pneumonia vaccine, in her right arm at a Rite Aid pharmacy.
Ms. Dixon began experiencing side effects of the vaccines almost immediately. Later the day of the vaccine injections, she experienced right arm pain, tenderness, impaired mobility, and mild swelling. Her pain was constant, but aggravated by movement.
Ms. Dixon sought medical attention promptly. She visited her primary care provider the week after the injection, complaining of right arm pain, and she underwent an x-ray scan. By late December 2017, she began chiropractic treatment on her shoulder. In February 2018, she began treatment with her orthopedic specialist. In March, she began physical therapy treatment. Finally, in August, Ms. Dixon underwent an MRI scan, which found right shoulder tendinopathy and a high-grade muscle tear, and fluid accumulation. Based on this MRI, Ms. Baker's orthopedic specialist recommended surgery. Her final treatment was in March 2019, but the medical records themselves did not indicate whether Ms. Dixon ultimately underwent surgery.
Based on the evaluations and diagnostic tests performed prior to her MRI scan, Ms. Dixon was originally evaluated with positive shoulder impingement and tendinitis. Once her MRI scan showed showed rotator cuff damage, her diagnosis developed to include a "very large" rotator cuff tear and accumulation of fluid in the form of marrow edema and subdeltoid bursal fluid.
Contradiction in Medical Records regarding Vaccination Site
The dispute in this case surrounded a discrepancy in medical records. Specifically, there was a dispute whether the vaccines were injected into Ms. Dixon's right or left arm. Obviously, if the vaccines were injected into her left arm, they could not have caused her right arm symptoms.
On one hand, the vaccine administration form that Rite Aid completed at the time of administration indicated that the vaccines were injected into her left arm. On the other hand, all subsequent records, including the primary care provider records, orthopedic records, physical therapy records, and chiropractic records all referenced the injection in her right arm. The Department of Justice attorneys argued that, because of this discrepancy, Ms. Dixon was not entitled to benefits.
The judge reviewed the entirety of the record and found that the evidence favored Ms. Dixon. Therefore, the judge determined she was entitled to benefits.
Explaining his reasoning, the judge explained that, although Rite Aid's vaccine administration record was important evidence, the majority of medical records still showed the vaccination was in Ms. Dixon's right arm. Furthermore, Ms. Dixon had no previous right shoulder symptoms or injury that would explain the pain and impairment that appeared just after the vaccination. Finally, there was no evidence or alternative explanation provided by the Department of Justice of what else could have caused Ms. Dixon's right shoulder symptoms.
"The only contrary record comes from the administration record itself. While that document is both the first contemporaneous item of evidence relevant to this fact dispute, it finds no other corroboration in the overall record – and I do not give it excessive weight simply, since it is consistently observed in SIRVA cases in the Program that computer-generated administration records are frequently incorrect, or are completed based on assumptions about what arm will receive the vaccine in most cases– but without taking into account the relevant petitioner’s circumstances." – Chief Special Master Brian H. Corcoran
TAKEAWAY: Discrepancies and Mistakes in Medical Records are Problematic, but Claimants with Good Lawyers Can Prevail
Having represented hundreds of individuals dealing with SIRVA injuries as a side effect of a flu shot, it is very common for medical records to include some inaccuracies. Ms. Dixon's case is far from unique. Nonetheless, an effective SIRVA lawyer can help overcome contradictory information in records. Often, the first line of defense involves incorporating other, more helpful medical records to build evidence outweighing the negative evidence.
Review the full decision here: Dixon v. Secretary of Health and Human Services