Practice Pointer: Building a Comprehensive Medical Record in Vaccine Act Cases

Experienced Vaccine Program practitioners know that a case is only as strong as the records supporting it. Early and thorough record collection not only helps counsel evaluate reasonable basis and causation but also allows potential issues to be identified before significant time and resources are invested in a case.

Just as importantly, practitioners should remember that the Court requires petitioners to file certified medical records. See Vaccine Rule 2(c)(2)(B). Careful and comprehensive record collection at the outset of a case can save substantial time later in the litigation and help avoid unnecessary delays.

While every claim is different, there are several categories of records that experienced practitioners routinely seek in virtually every new case. Obtaining these records early can help counsel develop a more complete understanding of the petitioner’s medical history and avoid surprises down the road.

Before You Begin: Request Certified Records

One of the first lessons many Vaccine Program practitioners learn is that obtaining records and obtaining certified records are not necessarily the same thing.

Whenever possible, counsel should request certified copies of records from providers and confirm that the records received include the appropriate certification. Practitioners should also review records upon receipt to ensure that certification pages are complete and correspond to the records produced. When records are received electronically, it is worth taking a few extra minutes to confirm that certification pages have been included before filing.

Use the PAR Questionnaire as an Intake Tool

Practitioners new to Vaccine Act litigation should become familiar with the Court’s Pre-Assignment Review (“PAR”) Questionnaire as early as possible. Even before a petition is filed, the PAR can serve as an invaluable intake and case development tool. The PAR reminds petitioners and counsel that complete medical records are required and specifically identifies records that should be collected, including:

• The vaccination record;
• Medical records from three years prior to vaccination through the present; and
• All records related to treatment of the alleged vaccine injury.¹

The PAR also requires petitioners to identify:

1. All medical providers seen during the three years prior to vaccination;
2. All providers seen after vaccination—even if the treatment appears unrelated to the alleged vaccine injury; and
3. The location where the vaccination was administered.¹

Completing the PAR with the petitioner during intake can help identify providers that might otherwise be overlooked. The Court specifically cautions that failure to submit complete medical records may significantly delay processing of a claim.¹

Practice Tip: Consider reviewing the PAR questionnaire with every new client during the intake process, even if the questionnaire itself will not be completed until later in the case. Many practitioners find that the PAR provides an excellent roadmap for identifying records that should be requested early in the litigation.

1. Complete Primary Care Records

Primary care records often provide the most comprehensive picture of a petitioner’s health both before and after vaccination. These records frequently contain information regarding pre-existing medical conditions, prior symptoms or complaints, vaccination history, and follow-up care after the alleged vaccine injury.

New practitioners sometimes focus their requests on records generated immediately before or after the vaccination. While those records are certainly important, limiting requests too narrowly may overlook information relevant to causation, damages, or alternative explanations for the alleged injury. In many cases, obtaining an appropriate period of records both before and after vaccination provides the most complete picture of the petitioner’s medical history.

2. All Records Relating to the Alleged Injury—Not Just the “Important” Ones

Clients often identify the providers they believe are most relevant to their claim. However, counsel may wish to resist the temptation to request only those records.

For example, a petitioner alleging a neurological injury may also have treated with primary care providers, emergency departments, physical therapists, chiropractors, or pain management specialists. Each of these records may contain important histories, symptom descriptions, or information bearing on onset and progression.

3. Physical Therapy, Occupational Therapy, and Rehabilitation Records

Therapy records are among the most frequently overlooked records in Vaccine Program practice, yet these records often contain detailed descriptions of symptoms, functional limitations, pain complaints, range-of-motion findings, and progress over time. Therapists also frequently document patient-reported histories that may shed light on onset and symptom progression.

In SIRVA cases in particular, physical therapy records may provide important evidence regarding severity, treatment, functional limitations, and recovery. Many experienced practitioners have discovered that some of the most detailed discussions of a petitioner’s symptoms appear not in physician records, but in therapy notes.

4. Prior Relevant Medical Records

Counsel should consider what pre-vaccination records are necessary to establish the petitioner’s baseline health and evaluate potential alternative causes. Obtaining these records early allows counsel to identify and address potential issues before expert review begins. It is far preferable to discover a potential alternative explanation during the intake phase than after expert reports have been exchanged.

5. Records Supporting Damages

Practitioners understandably spend significant time developing causation evidence early in a case. However, damages development should not be overlooked. Depending on the claim, counsel may wish to obtain employment records, wage information, school records, Individualized Education Programs (IEPs), disability records, insurance records, and documentation of out-of-pocket expenses. Developing damages evidence early can assist in evaluating the case, facilitate settlement discussions, and avoid scrambling to obtain records later in the litigation.

Final Thoughts

Every experienced Vaccine Program practitioner develops his or her own approach to record collection over time. But one principle remains constant: comprehensive record collection at the outset of a case is almost always time well spent.

The more complete the record, the better equipped counsel will be to evaluate reasonable basis, identify strengths and weaknesses, work effectively with experts, and advise clients throughout the litigation.

The Court’s PAR questionnaire provides an excellent roadmap for newer practitioners and can help ensure that records requests are comprehensive from the beginning.

Office of Special Masters, Pre-Assignment Review (PAR) Questionnaire, available on the U.S. Court of Federal Claims website. The PAR requires petitioners to submit vaccination records, medical records from three years prior to vaccination through the present, and all records related to treatment of the alleged vaccine injury, and cautions that failure to submit complete medical records may significantly delay processing of a claim. See also Vaccine Rule 2(c)(2)(B).

Practice Pointer is a recurring VIP Bar series designed to provide practical guidance to attorneys practicing in the National Vaccine Injury Compensation Program. This article is intended for informational purposes only and does not constitute legal advice. Practitioners should consult the Vaccine Rules, OSM guidance, and applicable caselaw when litigating Vaccine Act claims.