Medical Records and Familial Testimony in the Howard Case

The decision in Howard v. Secretary of Health and Human Services is an example of a Special Master favoring medical records over familial testimony when determining how events are temporally related.

The Federal Circuit in Althen stated that part of proving “causation-in-fact” is showing “a proximate temporal relationship between vaccination and injury.” (418 F.3d at 1278.) Two types of evidence are often presented to show when the symptoms started: medical records and familial testimony.  This case sets a pattern for assessing familial testimony that is not supported by the medical records.

Sierra, the daughter of the petitioner in Howard, was diagnosed with hypereosinophilic syndrome, known as HIS, after receiving her third hepatitis B vaccination.  The child was 12 months old when she received the hepatitis B vaccination, and a main question in the case was when her initial symptoms began.  The petitioner submitted numerous medical records from the several doctors who treated their daughter, but the most important records were those of the initial treating pediatrician, Dr. Bianchi.  Those records laid out a temporal sequence that was different from the testimony of Sierra’s mother at trial.

The Special Master chose to believe the time line that was laid out in the medical records instead of the testimony of Sierra’s mother.  In making that decision, the Special Master relied on the “general principle [noted in prior vaccine cases] that contemporaneously-recorded records should ordinarily be given greater evidentiary weight than witness recollections offered long after the event in question.” (Decision at 8, note 10.) The Special Master also explained that it is understandable for parents to give testimony that is in fact inaccurate because, after hearing a physician’s stories, reading articles, or watching television programs, they may begin to “‘remember’ in hindsight” a different timing for when symptoms began.

In creating the model of the Special Master’s reasoning in Howard, we decided to use a rather complex modeling scheme for Prong 3.  A two-part MIN was used to model the petitioner’s allegations, the second MIN assertion being the mother’s description of the appearance of Sierra’s symptoms. A REBUT was attached to the second MIN assertion, containing the contrary reasoning of the Special Master. Part of that reasoning followed modus tollens: for example, if Sierra had had such severe symptoms soon after the vaccination, then she would have been taken to see her pediatrician or another physician; but she was not taken to see her pediatrician, or any other physician, until much later. (The evidence for the latter assertion is the medical records.) Therefore, Sierra’s symptoms during the relevant time were probably not significant.

This case shows the degree of weight that a Special Master may put on medical records, and also shows a framework for how the Special Master may deal with familial evidence not corroborated by medical records.

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