Matthews v. Secretary of Health and Human Services

In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS

No. 19-414V

Filed: August 19, 2021

PUBLISHED

Special Master Horner

JOHNNY MATTHEWS,

Petitioner, Dismissal; Evidence of

v. Vaccination; Influenza Vaccine;

Guillain-Barre Syndrome (GBS)

SECRETARY OF HEALTH AND

HUMAN SERVICES,

Respondent.

Renee J. Gentry, Vaccine Injury Clinic, George Washington University Law School,

Washington, DC, for petitioner.

Ryan Daniel Pyles, U.S. Department of Justice, Washington, DC, for respondent.

DECISION 1

On March 19, 2019, petitioner, Johnny Matthews, filed a petition under the

National Childhood Vaccine Injury Act, 42 U.S.C. § 300aa-10-34 (2012), alleging that he

suffered Guillain-Barre Syndrome (“GBS”) caused by his receipt of an influenza (“flu”)

vaccination “on or around” November 10, 2013. (ECF No. 1, p. 1.) Petitioner now

moves for a finding of fact that he did receive a flu vaccination on or about November

10, 2013, as alleged, despite not being able to produce a vaccine administration record.

(ECF No. 50.) Respondent opposes petitioner’s motion and cross-moves for dismissal

of this case due to petitioner’s failure to establish that he received a vaccination. (ECF

No. 51.) For the reasons discussed below, I find that there is not preponderant

evidence that petitioner received a vaccination covered by this program and therefore

dismiss this petition.

1 Because this decision contains a reasoned explanation for the special master’s action in this case, it will

be posted on the United States Court of Federal Claims’ website in accordance with the E-Government

Act of 2002. See 44 U.S.C. § 3501 note (2012) (Federal Management and Promotion of Electronic

Government Services). This means the decision will be available to anyone with access to the

Internet. In accordance with Vaccine Rule 18(b), petitioner has 14 days to identify and move to redact

medical or other information the disclosure of which would constitute an unwarranted invasion of privacy.

If the special master, upon review, agrees that the identified material fits within this definition, it will be

redacted from public access.

1

I. Procedural History

This case was initially filed by petitioner as a pro se petitioner and was originally

assigned to Special Master Sanders. His current counsel, Ms. Gentry, was substituted

as counsel on April 29, 2019. (ECF No. 14.) The case was subsequently reassigned to

me on August 28, 2019. (ECF No. 28.)

Petitioner’s initial filings are inconsistent with respect to the date of petitioner’s

alleged vaccination. His petition at turns references a date of either November 1, 2013,

or November 10, 2013. (ECF No. 1, p. 1.) A separate filing, also captioned as a

petition, indicates the vaccination occurred on an unspecified date in October 2013.

(ECF No. 7, p. 1.) Petitioner later filed medical records and an affidavit on October 14,

2019. (ECF No. 30; Exs. 1-5). His affidavit describes the circumstances of his

vaccination and indicates it was administered in connection with a surgery that occurred

on November 18, 2013. (Ex. 5, p. 1.)

After investigating whether additional records exist, petitioner ultimately filed a

Statement of Completion on February 7, 2020. (ECF No. 36.) However, respondent

filed a status report on March 3, 2020, indicating that the records filed to that point

lacked a record of the vaccination alleged to be at issue and that certain other records

appeared incomplete. (ECF No. 37.)

Petitioner subsequently filed further medical records. (ECF Nos. 38-39, 44; Exs.

4, 6-9.) Respondent then filed his Rule 4(c) Report on December 16, 2020, principally

raising the issue that petitioner’s vaccination was still not adequately documented. (ECF

No. 48.) In response, petitioner filed a status report indicating that “[t]here are no other

outstanding records. Petitioner believes a determination by the Special Master will be

necessary as to whether the evidence, as a whole, supports the receipt of an influenza

vaccination.” (ECF No. 49.)

On February 23, 2021, petitioner filed a motion for a finding of fact. (ECF No. 50.)

Petitioner contends that the weight of the circumstantial evidence supports a finding that

petitioner received a flu vaccination on or about November 10, 2013. (Id. at p. 5.) On

March 9, 2021, respondent filed a response opposing petitioner’s motion and also

asserting a cross-motion for dismissal of the case for failure to establish receipt of a

vaccination. (ECF No. 51.) Petitioner filed a reply on March 16, 2021. (ECF No. 52.)

I have determined that the parties have had a full and fair opportunity to present

their cases and that it is appropriate to resolve this issue without a hearing. See Vaccine

Rule 8(d); Vaccine Rule 3(b)(2); Kreizenbeck v. Secretary of Health & Human Services,

945 F.3d 1362, 1366 (Fed. Cir. 2020) (noting that “special masters must determine that

the record is comprehensive and fully developed before ruling on the record.”).

Accordingly, this issue is now ripe for resolution.

2

II. Factual History

I have reviewed the entirety of petitioner’s medical records as filed in this case;

however, it is not necessary to discuss these records in full detail. The only question at

issue is whether petitioner received a flu vaccination prior to onset of his GBS. The fact

of his GBS diagnosis and the subsequent course of his illness are not in dispute on this

motion. This factual summary will focus exclusively on points bearing on whether

petitioner received a flu vaccination as alleged.

Petitioner presented to the Carolinas Hospital System emergency department on

October 13, 2013, for lower back pain assessed as an acute lumbar strain. (Ex. 1, p.

11.) A screening assessment indicated “no” in response to the prompt “flu vaccine this

season.” (Id. at 13.) Petitioner returned to the same emergency department on October

28, 2013, for scabies. (Id. at 26-27.) The same screening question was again marked

“no” regarding whether petitioner had a vaccine for the current flu season. (Id. at 29.)

On November 10, 2013, petitioner again returned to the Carolinas Hospital

emergency department. (Id. at 40.) He presented with a swollen painful toe. (Id.) This

time the screening question reportedly elicited a “yes” as to whether petitioner had

received his flu vaccine for the year. (Id. at 43.)

On November 13, 2013, petitioner presented to the McLeod Regional Medical

Center (“MRMC”) emergency department for cough, congestion, and right-side pain. 2

(Ex. 4, pp. 1903-11.) He was negative for influenza and diagnosed with a “cough” with

instructions to follow up with a primary care provider. (Id.) There is no indication of any

screening for vaccination status.

On November 18, 2013, petitioner returned to the Carolinas Hospital emergency

department with a severe right forearm wound sustained from a knife attack. (Ex. 1, p.

98.) The wound was approximately 10cm x 4 cm in area, 4 cm deep, and there was a

chip in the bone. (Id. at 117.) Petitioner was admitted for a surgical repair. (Id. at 117-

18.) As with his prior November 10, 2013 encounter, the Carolinas Hospital screening

questions again reportedly elicited a “yes” in response to whether petitioner had his

seasonal flu vaccination. (Id. at 111.) Significantly, however, petitioner avers that he

later received his flu vaccination in the course of this hospitalization. (Ex. 5, p. 1.)

Petitioner describes his flu vaccination has having been administered by a nurse

in the emergency room in his left arm while another nurse was sewing up his right arm

after his surgery. 3 (Ex. 5, p. 1.) However, petitioner’s operative report indicates that his

2 Some of petitioner’s medical records from this provider reflect an alias. (Ex. 6, p. 3.)

3 Of note, respondent observes that in the specific context petitioner describes a tetanus vaccination

would have been more likely to be administered than a flu vaccination. (ECF No. 51, n. 4.) However, this

petition was filed more than five years after November 18, 2013. As respondent explained in this Rule 4

Report, the petition was timely filed relative to petitioner’s allegation of a flu vaccine having been

administered because GBS following flu vaccination was added to the Vaccine Injury Table in 2017. (ECF

3

surgery occurred in the operating room rather than the emergency room. He was under

anesthesia and intubated during the surgery and the wound was stapled, splinted,

dressed, and wrapped in the operating room while petitioner remained under

anesthesia. (Ex. 1, pp. 117-18.) After the surgery he was transferred to the post-

anesthesia care unit (“PACU”) not the emergency room. (Id.)

Petitioner’s November 18, 2013 emergency department record does not reflect

that a flu vaccine was administered. Moreover, itemized billing records have been filed

for the hospital stay at which petitioner avers his vaccination occurred and these

records likewise reflect no charge for a flu vaccine. (Ex. 7.) In fact, the discharge

summary for petitioner’s November 18, 2013 admission to Carolinas Hospital

specifically indicates that no flu vaccine was administered during his admission. (Ex. 1,

p. 139.) Additionally, a November 21, 2013 form hand signed by a nurse check marked

that petitioner declined to receive the flu vaccination. (Ex. 1, p. 107.)

Petitioner returned to the Carolinas Hospital emergency department on

November 25, 2013, complaining of numbness and tingling in his legs. (Ex. 1, p. 53.)

The screening assessment indicated “no” in response to the prompt “flu vaccine this

season.” (Id. at 170.) Petitioner was discharged with a diagnosis of “hyperventilation

syndrome.” (Id. at 167.) Two days later, petitioner sought care from MRMC. (Ex. 4, p.

1986-90.) His vaccinations were noted to be “current” without specificity. (Id. at 1987.)

Petitioner left against medical advice. (Id. at 1988.) Petitioner returned to Carolinas

Hospital on November 28, 2013. (Ex. 1, p. 185.) Carolinas Hospital again recorded that

petitioner had not received his annual flu vaccination. (Id. at 192.) The assessment was

neuropathy and petitioner was to follow up with a neurologist. (Id. at 188-89.)

Petitioner was subsequently admitted to MRMC on November 29, 2013, for what

was later diagnosed as GBS. His flu vaccination status upon admission was confirmed

as indicating no flu vaccine for the current flu season. (Ex. 4, pp. 633, 636.) An order

was entered to administer a flu vaccination at discharge. (Ex. 4, p. 2084.) Petitioner

subsequently had a neurology consultation on December 6, 2013. (Ex. 9, pp. 215-16.)

At that time, petitioner was intubated and sedated and his girlfriend provided a history

that noted an upper respiratory infection preceding petitioner’s condition, but included

no mention of a flu vaccination. (Id.) Petitioner was given a diagnosis of probable GBS

to be confirmed later with further diagnostic tests. (Id.) This assessment was made

without reference to any vaccination history.

Subsequently, a notation appears in petitioner’s medical records dated

December 12, 2013 instructing a nurse to call the Carolinas Hospital to determine

whether a flu shot had been administered during petitioner’s prior admission. (Ex. 9, p.

307.) A separate notation includes a checkmark and the word “done.” (Id.) Clinical

notes from the same date indicate: “contacted John Pennstrom, pharmacist at Carolinas

Health System per MD order to find out if pt received flu shot prior to discharge. Stated

there are no records of pt receiving the vaccination.” (Ex. 4, p. 298.)

No. 48, n. 1.) Accordingly, even if petitioner amended his petition to allege administration of a tetanus

vaccination, he still would not be able to pursue his claim.

4

No further notation is made regarding petitioner’s vaccination status until

December 21, 2013, when a handwritten note indicates “recent shot followed by

Guillain-Barre Syndrome” and instructs that the flu vaccine should be added to

petitioner’s allergy list. (Ex. 9, p. 294.) The basis for this notation is not clear. Though

intubated and previously sedated, as of December 21, 2013, petitioner was awake and

communicating by answering yes or no questions by nodding or shaking his head. He

also had a communication board. (E.g. Ex. 4, p. 279.) However, petitioner’s detailed

clinic notes contain no indication that petitioner provided this information. It is not until

his date of discharge, January 18, 2014, that petitioner is recorded as having reported

that he was previously vaccinated. 4 (Ex. 4, p. 253.)

Following the December 21, 2013 notation that petitioner’s GBS followed

vaccination, his record was updated to include the flu vaccine among his allergies on

the basis that his GBS was a reaction to the flu vaccine. (Ex. 4, p. 533.) At that time,

Dr. Duncan also discontinued the instruction that petitioner receive the flu vaccine upon

discharge. (Ex. 9, p. 538.) A follow up consultation for pain management on January 7,

2014 indicated under allergies that petitioner “is now no longer a candidate for the flu

shot,” but did not discuss petitioner’s prior vaccination history or the etiology of his GBS.

(Ex. 4, p. 525.)

Petitioner subsequently reported to other providers that his GBS was secondary

to a flu vaccination (Ex. 3, p. 18) and the flu vaccine continued to be listed as an allergy

(e.g. Ex. 9, p. 7).

III. Legal Standard

Under the National Vaccine Injury Compensation Program, compensation

awards are made to individuals who have suffered injuries after receiving vaccines. In

general, to gain an award, a petitioner must make a number of factual demonstrations,

including showing that an individual received a vaccination covered by the statute;

received it in the United States; suffered a serious, long-standing injury; and has

received no previous award or settlement on account of the injury. Petitioner has the

burden of demonstrating the facts necessary for entitlement to an award by a

“preponderance of the evidence.” § 300aa-12(a)(1)(A). Under that standard, the

existence of a fact must be shown to be “more probable than its nonexistence.” In re

Winship, 397 U.S. 358, 371 (1970) (Harlan, J., concurring).

The Vaccine Act states that “[t]he special master or court may not make such a

finding [of eligibility and compensation] based on the claims of a petitioner alone,

unsubstantiated by medical records or by medical opinion.” § 300aa-13(a)(1).

Nonetheless, special masters are not bound by the reports, summaries, or conclusions

contained in the medical records. § 300aa-13(b)(1). Rather, the special master must

consider the entire record. Id. Importantly, the fact of a vaccination need not itself be

proven by medical records or medical opinion. See, e.g. Wonish v. Sec’y of Health &

4Petitioner likewise indicated in one of his initial pleadings that he first informed the physicians at MRMC

of his prior flu vaccination in January of 2014. (ECF No. 7, p. 1.)

5

Human Servs., No. 90-667V, 1991 WL 83959, at *4 (Cl. Ct. Spec. Mstr. May 6,

1991)(stating with regard to § 300aa-13(a)(1) that “it seems obvious then that not all

elements must be established by medical evidence” and that “vaccination is an event

that in ordinary litigation could be established by lay testimony. Medical expertise is not

typically required.”) Nor, for that matter, does it necessarily have to be evidenced by

contemporaneous documentation. See, e.g. Centmehaiey v. Sec’y of Health & Human

Servs., 32 Fed. Cl. 612, 621 (1995), (noting that “the lack of contemporaneous

documentary proof of vaccination, however, does not necessarily bar recovery.”), aff’d

73 F. 3d 381 (Fed. Cir. 1995); see also Woodson v. Sec’y of Health & Human Servs.,

No. 91-263V, 1992 WL 59707, at *2 (Fed. Cl. Spec. Mstr. Mar. 5, 1992)(noting that

“[t]he petition should not be dismissed as a matter of law, merely because there is no

documentary evidence that the vaccination took place and [petitioner] is the only

witness claiming personal knowledge of the vaccination. Her testimony on this point

must be weighed in the context of the entire record.”).

However, medical records do ordinarily “warrant consideration as trustworthy

evidence.” Cucuras v. Sec’y of Health & Human Servs., 993 F.2d 1525, 1528

(Fed.Cir.1993). Where subsequent testimony conflicts with contemporaneous medical

records, special masters frequently accord more weight to the medical records. See,

e.g., Reusser v. Sec’y of Health & Human Servs., 28 Fed. Cl. 516, 523 (1993)

(“[W]ritten documentation recorded by a disinterested person at or soon after the event

at issue is generally more reliable than the recollection of a party to a lawsuit many

years later.”); see also Vergara v. Sec’y of Health & Human Servs., 08-882V, 2014 WL

2795491, *4 (Fed. Cl. Spec. Mstr. July 17, 2014) (“Special Masters frequently accord

more weight to contemporaneously-recorded medical symptoms than those recorded

later in medical histories, affidavits, or trial testimony.”).

Special masters are cautioned against favoring contemporaneous records

“reflexively” and must not overemphasize individual records at the expense of a

comprehensive evaluation of the entire record. Shapiro v. Sec’y of Health & Human

Servs., 101 Fed. Cl. 532, 539-40 (2011). “Medical records are only as accurate as the

person providing the information.” Parcells v. Sec’y of Health & Human Servs., No. 03-

1192V, 2006 WL 2252749, at *2 (Fed. Cl. Spec. Mstr. July 18, 2006). However, “the

absence of a reference to a condition or circumstance is much less significant than a

reference which negates the existence of the condition or circumstance.” Murphy v.

Sec’y of Health & Human Servs., 23 Cl. Ct. 726, 733 (Fed. Cl. 1991), aff’d 968 F.2d

1226 (Fed. Cir. 1992), cert. den’d, Murphy v. Sullivan, 506 U.S. 974 (1992).

There are situations in which compelling oral testimony may be more persuasive

than written records, such as where records are deemed to be incomplete or inaccurate.

Campbell v. Sec'y of Health & Human Servs., 69 Fed.Cl. 775, 779 (2006) (“like any

norm based upon common sense and experience, this rule should not be treated as an

absolute and must yield where the factual predicates for its application are weak or

lacking”); Lowrie v. Sec'y of Health & Human Servs., No. 03–1585V, 2005 WL 6117475,

at *19 (Fed. Cl. Spec. Mstr. Dec. 12, 2005) (“[w]ritten records which are, themselves,

inconsistent, should be accorded less deference than those which are internally

6

consistent”) (quoting Murphy, 23 Cl.Ct. at 733). However, when witness testimony is

offered to overcome the weight of contemporaneous medical records, such testimony

must be “consistent, clear, cogent, and compelling.” Camery v. Sec'y of Health &

Human Servs., 42 Fed. Cl. 381, 391 (1998) (citing Blutstein v. Sec'y of Health & Human

Servs., No. 90–2808V, 1998 WL 408611, at *5 (Fed. Cl. Spec. Mstr. June 30, 1998)).

IV. Party Contentions

The parties largely agree on the applicable legal standard, but differ significantly

in their interpretations of the record evidence. Petitioner concedes that proof of

vaccination is a requirement of the Vaccine Act, but stresses that a specific record of

vaccination is not required. (ECF No. 52, p. 1.) Respondent agrees that

contemporaneous documentation of vaccination “is not absolutely required in all cases,”

but stresses that contemporaneous documentation from a healthcare provider “is the

best evidence that a vaccination occurred.” (ECF No. 51, p. 8 (quoting Gambo v. Sec’y

of Health & Human Servs., No. 13-691V, 2014 WL 7739572, at *3 (Fed. Cl. Spec. Mstr.

Dec. 18, 2014)).)

In suggesting the record evidence as a whole preponderates in favor of a

vaccination having been administered, petitioner focuses principally on the fact that the

flu vaccine was documented in petitioner’s medical records as an allergy or

contraindication during his hospitalization for GBS and within two months after the

vaccination is alleged to have occurred. (ECF No. 52, p. 2.) In spite of other

inconsistent records, petitioner asserts in effect that this evidences an understanding by

the treating physicians that petitioner’s GBS was vaccine-caused, thereby evidencing

the fact of the vaccination. (Id.) Petitioner asserts that the notation of an allergy in the

medical records should carry greater weight than prior “checkbox” notations regarding

the fact of vaccination because the determination that an allergy is present is a more

medically significant determination that “can have deadly ramifications if missed.” (Id.)

Petitioner indicates that he “is not asking the Special Master to rely on his testimony

alone, rather to look at the record as a whole. Is Mr. Matthews’s receipt of an influenza

vaccination on or before November 10, 2013 ‘more probable than its nonexistence’?

Petitioner asserts that it is.” (Id. at 3.)

Respondent contends that petitioner’s interpretation of the allergy notation is both

speculative and not the best explanation for the contraindication. (ECF No. 51, pp. 9-

10.) Respondent also challenges the credibility of petitioner’s own description of his

vaccination as contained in his affidavit and further stresses that in his various filings

petitioner has alleged inconsistent dates of vaccination. (Id. at pp. 8-10.) In any event,

respondent disputes that petitioner’s own affidavit is sufficient to carry petitioner’s

burden of proof. (Id. at pp. 10-11.) Respondent contends that petitioner’s allegations

are lacking sufficient context and particularity to constitute evidence that any vaccination

occurred and concludes that there is not preponderant evidence of any vaccination. (Id.

at pp. 8, 10.)

7

V. Analysis

As explained above, petitioner must demonstrate that a vaccine was

administered but need not necessarily file a vaccine administration record so long as

there is preponderant evidence that the vaccination occurred. Considering the record

as a whole, several aspects of petitioner’s medical history warrant discussion, namely:

inconsistent references to petitioner’s vaccination status prior to onset of his GBS; the

implausibility of the more detailed account of vaccination provided by petitioner;

references to efforts made to ascertain petitioner’s vaccination status during his

hospitalization for his GBS; and the undisclosed basis for the references to petitioner

becoming ineligible for future flu vaccinations. Considering the record as a whole, there

is not preponderant evidence that petitioner received a flu vaccination at any point in the

days, weeks, or months preceding onset of his GBS.

Petitioner’s contemporaneous medical records reflect that he was inconsistent

during the relevant period in reporting whether he received a flu vaccine for the 2013-14

flu season. (Compare Ex. 1, p. 13 (no on 10/13/13); Ex. 1, p. 29 (no on 10/28/13); Ex. 1,

p. 43 (yes on 11/10/13); Ex. 1, p. 111 (yes on 11/18/13); Ex. 1, p. 170 (no on 11/25/13);

Ex. 4, p. 1988 (vaccinations “current”); Ex. 1, p. 192 (no on 11/28/13); Ex. 4, pp. 633,

636 (no on 11/29/13); Ex. 4, p. 253 (yes on 1/18/14).) Petitioner argues that these

types of screening questions regarding vaccination history “may or may not” constitute

the type of medical record entry that warrants special weight based on the common

understanding that, with proper treatment hanging in the balance, “accuracy has an

extra premium.” (ECF No. 52, p. 2 (citing Andreu v. Sec’y of Health & Human Servs.,

569 F.3d 1367, 1383 (Fed. Cir. 2009).) Importantly, however, even if these records are

not entitled to added weight, petitioner has not provided any specific reason for

supposing that the inaccuracy and inconsistency of these reports originates with the

medical providers in taking petitioner’s history rather than with petitioner in providing it.

Significant to that point, petitioner is separately noted in his medical records as being a

“difficult historian.” (Ex. 1, p. 185.) Moreover, in his filings in this case petitioner

continues to be inconsistent in identifying the time by which he alleges that he was

vaccinated for the 2013-14 flu season, leaving it impossible to even conclude which

reports would have been in error. (Compare ECF No. 1, p. 1. (alleging vaccination on or

about November 10, 2013); ECF No. 7, p. 1 (alleging vaccination in October 2013); Ex.

5, p. 1 (alleging vaccination after surgery on November 18, 2013).)

Additionally, these inconsistent notations were generated at two different facilities

on nine different occasions and both confirm and deny that petitioner was vaccinated.

Many of these notations would have to be incorrect to allow for the record to support

any of petitioner’s various allegations. For example, assuming arguendo petitioner’s

affidavit accurately placed his vaccination post-surgery on November 18, 2013, five

separate notations regarding his vaccination status would necessarily be incorrectly

recorded. (Ex 1, p. 43 (yes on 11/10/13); Ex. 1, p. 111 (yes on 11/18/13); Ex. 1, p. 170

(no on 11/25/13); Ex 1, p. 192 (no on 11/28/13); Ex. 4, pp. 633, 636 (no on 11/29/13).)

Moreover, these notations would not all reflect the same error – in some instances

incorrectly affirming vaccination while in others later incorrectly disclaiming vaccination.

8

Accordingly, petitioner’s inconsistency is not easily explained by recordkeeping error.

Nor are his various reports readily harmonized to any of his allegations. Thus, without

more, these notations cannot serve as evidence that any vaccination occurred.

As discussed above, petitioner recalls that he was vaccinated at Carolinas

Hospital following his right forearm surgery. (Ex. 5, p. 1.) Petitioner describes his flu

vaccination as having been administered by a nurse in the emergency room in his left

arm while another nurse was sewing up his right arm after his surgery. (Id.) However,

petitioner’s operative report indicates that his surgery occurred in the operating room

rather than the emergency room. He was under anesthesia and intubated during the

surgery and the wound was stapled, splinted, dressed, and wrapped in the operating

room while petitioner remained under anesthesia. (Ex. 1, pp. 117-18.) After the surgery

he was transferred to the post-anesthesia care unit (“PACU”) not the emergency room.

(Id.) Moreover, in the course of his subsequent medical history, his wound was later

assessed at MRMC. (Ex. 4, pp. 1980-81.) These records further confirm petitioner’s

wound was stapled, not sutured. (Id.) The circumstances petitioner describes simply

do not appear to be possible in light of what his hospitalization records show to have

been his course of care. 5

Additionally, while petitioner has been consistent in alleging that he was

vaccinated at Carolinas Hospital, the contemporaneous medical records filed from this

provider are not, on the whole, consistent with that allegation. 6 Apart from lacking a

specific vaccine administration record, the records generated during petitioner’s

November 18, 2013 hospitalization at Carolinas Hospital (or any of his other emergency

department encounters around that time) are completely lacking for any notation by any

of the treating doctors or nurses discussing, contemplating, ordering, or administering a

flu vaccination to petitioner during the course of his care. Further to this point, itemized

billing records have been filed for the hospital stay at which petitioner avers his

vaccination occurred and these records reflect no charge for a flu vaccine. (Ex. 7.)

In fact, petitioner’s recollection is flatly contradicted by the specific confirmation

contained in the hospital records that petitioner declined to be vaccinated during this

hospitalization and that no flu vaccination was administered. (Ex. 1, pp. 107, 139.)

Thus, it is not merely the case that petitioner’s vaccine administration record is absent.

Rather, the contemporaneous medical records explicitly deny any vaccination

5 In his recitation of the facts of this case, respondent also stresses several points which he intimates

should weigh against petitioner’s credibility as a witness. (ECF No. 51, pp. 2-8.) In response, petitioner

stresses that this case should not turn on whether petitioner is a sympathetic victim. (ECF No. 52, p. 3.)

In the interest of completeness, I note that due to the facial unreliability of petitioner’s account it is not

necessary to reach the question of petitioner’s credibility with regard to the specific points raised by

respondent.

6 Of note, although petitioner could theoretically have received a vaccination from a pharmacy or in some

other context, he has consistently maintained that his vaccination was administered at Carolinas Hospital.

(ECF No. 1, p. 1; ECF No. 7 p. 1; Ex. 5, p. 1.) Moreover, petitioner has been given ample opportunity to

produce records from any and all relevant care providers and has not filed any vaccination record from

any other provider.

9

consistent with petitioner’s recollection. That is, there is not merely absence of

evidence; there is evidence of absence. Accord Murphy, 23 Cl. Ct. at 733 (explaining

that “the absence of a reference to a condition or circumstance is much less significant

than a reference which negates the existence of the condition or circumstance.”) Even

if petitioner is not required to prove the fact of his vaccination with an administration

record, this must necessarily weigh against his allegation.

As noted above, petitioner seeks to rely primarily on the fact that his treaters at

MRMC subsequently recorded that he was allergic to the flu vaccination as evidence

that they concluded his GBS was vaccine-caused and that he had therefore been

previously vaccinated. However, this conclusion is only as valuable as the information

underlying it. Medical records and/or statements of a treating physician's views do not

per se bind the special master to adopt the conclusions of such an individual, even if

they must be considered and carefully evaluated. §300aa-13(b)(1); Snyder v. Sec'y of

Health & Human Servs., 88 Fed.Cl. 706, 746 n.67 (2009) (“there is nothing ... that

mandates that the testimony of a treating physician is sacrosanct—that it must be

accepted in its entirety and cannot be rebutted”). The views of treating physicians

should also be weighed against other, contrary evidence also present in the record.

Hibbard v. Sec'y of Health & Human Servs., 100 Fed.Cl. 742, 749 (2011) (not arbitrary

or capricious for special master to weigh competing treating physicians' conclusions

against each other), aff'd, 698 F.3d 1355 (Fed. Cir. 2012); Caves v. Sec'y of Health &

Human Servs., 100 Fed.Cl. 119, 136 (2011), aff'd, 463 Fed.Appx. 932 (Fed. Cir. 2012);

Veryzer v. Sec'y of Health & Human Servs., No. 06-522V, 2011 WL 1935813, at *17

(Fed. Cl. Spec. Mstr. Apr. 29, 2011), mot. for review den'd, 100 Fed.Cl. 344, 356 (2011),

aff'd without opinion, 475 Fed.Appx. 765 (Fed. Cir. 2012).

In the context of the record of this case, the fact that the physicians at MRMC

recorded petitioner as allergic to the flu vaccine is not persuasive evidence that he

received such a vaccine. As explained above, petitioner’s initial neurology appointment

generated a GBS diagnosis without any reported history of flu vaccination. (Ex. 9, pp.

215-16.) Accordingly, the fact of a vaccination was not a factor in initially arriving at the

GBS diagnosis. MRMC subsequently sought to confirm whether petitioner had been

vaccinated at Carolinas Hospital and specifically confirmed there was no record of

vaccination. (Ex. 4, p. 298.) And, indeed, as noted above, the Carolinas Hospital

records filed in this case explicitly indicate that no flu vaccine was administered during

petitioner’s hospitalization. (Ex. 1, pp. 107, 139.)

The source of information ultimately relied upon in subsequently noting to the

contrary that petitioner’s GBS followed a flu vaccine is not documented (Ex. 9, p. 294);

however, to the extent that source of information would have been petitioner himself, his

contemporaneous medical records document, as explained above, that he already had

an established pattern of inconsistently reporting whether he had received a flu vaccine

that year. Accordingly, reliance on a single, additional instance of this unreliable

reporting by the MRMC treaters does not provide any meaningful evidence buttressing

petitioner’s claim, especially where the treaters initially arrived at their diagnosis without

that information and then tried and failed to confirm the vaccination. Moreover, given

10

that MRMC confirmed that Carolinas Hospital had no record of vaccination, the later

notation that petitioner’s GBS was preceded by a flu vaccine is conspicuous for the lack

of any additional detail or indication of when petitioner purportedly received the

vaccination. Absent that information, it is impossible to glean whether the report

provided to the MRMC staff matched what petitioner now avers in this case or assess

whether the resulting conclusion of a cause-and-effect relationship was reliably

reached. 7

It is also worth noting, as petitioner stresses, that the act of marking something

as an allergy or as contraindicated is a precaution against future harm. In that regard,

petitioner’s GBS need not necessarily have been vaccine-caused to warrant the

precaution. The CDC recognizes that the flu vaccine broadly carries “a very small

increased risk” of GBS post-vaccination. 8 Accord National Vaccine Injury Compensation

Program: Revisions to the Vaccine Injury Table, 82 Fed. Reg. 6294-01, 6295 (Jan. 19,

2017) (explaining that “the Secretary found that there was compelling, reliable, and valid

medical and scientific evidence of an association between the 2009 H1N1 vaccine and

GBS . . . To date, the H1N1 antigen has been included in all seasonal influenza

vaccines beginning with the 2010-2011 flu season.”) Thus, individuals who have

7 See Gerard v. Sec’y of Health & Human Servs., No. 08-786V, 2013 WL 6916045 (Fed. Cl. Spec. Mstr.

Dec. 16, 2013), reconsideration granted 2014 WL 4293342 (Fed. Cl. Spec. Mstr. Aug. 8, 2014). Like this

case, the Gerard petitioner sought to prove in the absence of a vaccine administration record that he had

received a flu vaccine prior to onset of his GBS based on circumstantial medical record notations. Initially

the special master observed that there were inconsistent entries in the medical records insofar as a nurse

had recorded one entry listing the flu vaccine under petitioner’s allergies and another documenting that

petitioner had a “reaction” to his flu vaccine while also documenting that the petitioner had not received a

flu vaccine. 2013 WL 6916045 at *2-3. The special master reasoned that the contradiction was

explained by the fact that the flu vaccine is contraindicated for individuals who have previously had GBS.

Id. at n. 4. Reviewing the medical records as a whole, the special master concluded that there was not

preponderant evidence of any flu vaccine having been administered despite, inter alia, the notation that

the petitioner was allergic to the flu vaccine. However, the petitioner subsequently moved for

reconsideration and was provided an opportunity to file additional medical records. On reconsideration,

the special master observed that multiple of petitioner’s medical records indicated not merely that

petitioner was “allergic” to the flu vaccine, but that petitioner had in fact “had an ‘allergic reaction to the flu

shot in the form of GBS.’” Id. at *4. The special master also reconsidered fact witness testimony and

ultimately concluded that there was preponderant evidence of a vaccine having been administered. 2014

WL 4293342. Accordingly, even though the special master ultimately concluded that there was

preponderant evidence of a vaccination having been administered, that conclusion was based on medical

record notations explicitly indicating that the physicians felt the specific prior episode of GBS at issue had

been a reaction to a flu vaccine. Even after reconsideration the Gerard case suggests that in the context

of GBS a contraindication for future flu vaccinations, or identification of the flu vaccine as an allergy, does

not in itself evidence the fact of a prior vaccination having occurred. Here, like Gerard, there is a notation

indicating that petitioner’s prior GBS was a reaction to his vaccination. (Ex. 4, p. 544; Ex. 9, p. 294.)

However, when considering the record as a whole, this case is distinguishable from Gerard in that for all

the reasons discussed above there is not adequate evidence that the treater’s conclusion was reliability

reached in this case or that any flu vaccine was administered at all.

8 See, e.g. “Vaccine Information Statement” for Inactivated Influenza vaccine, current edition date

8/6/2019, Centers for Disease Control and Prevention, available at www.cdc.gov/vaccines/hcp/vis/vis-

statements/flu.html, last accessed on 8/6/2021.

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previously suffered GBS are generally cautioned against receipt of the flu vaccine

without specific respect to the underlying trigger of their prior GBS. 9

VI. Conclusion

Petitioner does have my sympathy for what he endured during what was clearly a

severe course of GBS. However, for all of reasons discussed above, neither petitioner’s

medical records nor his affidavit, alone or in combination, provide preponderant

evidence that any flu vaccination was administered to petitioner in the days, weeks, or

months prior to the onset of his GBS. Accordingly, this petition is DISMISSED. 10

IT IS SO ORDERED.

s/Daniel T. Horner

Daniel T. Horner

Special Master

9 See, e.g. “Who Should and Who Should NOT get a Flu Vaccine,” Centers for Disease Control and

Prevention, www.cdc.gov/flu/prevent/whoshoudvax.htm, last accessed 8/18/2021. In response to the

prompt “People who should talk to their health care provider before getting a flu shot,” the CDC indicates

“[i]f you ever had Guillain-Barre Syndrome (a severe paralyzing illness, also called GBS). Some people

with a history of GBS should not get the flu vaccine. Talk to your doctor about your GBS history.”

10In the absence of a timely-filed motion for review of this Decision, the Clerk of the Court shall enter

judgment accordingly.

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