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The Pennsylvania Superior Court remanded and instructed a lower court to dismiss a nursing manager's medical malpractice complaint after she sought damages for vaccine-related injuries without first exhausting available remedies under a national program.
The three-judge panel in Sullivan v. Holy Redeemer Hospital, including Judges Alice Beck Dubow, Mary Murray and James Gardner Colins, recently considered the interlocutory appeal by permission from an order denying the motion of appellants Holy Redeemer Hospital and Medical Center and Holy Redeemer Health System to dismiss a medical malpractice case filed by Lisa Sullivan, who worked in the hospital's emergency room, and alleged she suffered injuries to her shoulder after being administered a tetanus vaccine.
The appellate court found Sullivan's injuries, including reflex sympathetic dystrophy syndrome (RSD) and shoulder injury related to vaccine administration (SIRVA), fall under the Vaccine Injury Table and, therefore, she must first file a petition for compensation under the Vaccine Act.
In the panel's unanimous Sept. 24 opinion, Colins addressed an attempt in July 2020 to revise the Vaccine Injury Table to remove SIRVA as a vaccine-related injury, which would have allowed Sullivan to immediately pursue damages in court. However, that revision was never made because the Department of Health and Human Services became concerned that it would "negatively impact the vaccine administrators carrying out this massive COVID-19 vaccination campaign by increasing their exposure to liability" while administering the vaccines.
The hospital's attorney, Amalia Romanowicz of Post & Schell, declined to comment Tuesday.
Sullivan's attorney, James Beasley of the Beasley Firm, could not immediately be reached for comment.
Sullivan filed the medical malpractice claim in Montgomery County Court of Common Pleas in April 2019 after she experienced a severe burning and tingling in the back of her shoulder and neck after receiving the tetanus vaccine in June 2017, according to the appellate panel's opinion She alleged that she subsequently suffered from shoulder bursitis, inflammation, rim rent tear, impingement and reflex sympathetic dystrophy syndrome (RSD), due to the hospital's negligent administration of the shot—not due to the vaccine contents itself.
The defendants claimed Sullivan's lawsuit was barred by the National Childhood Vaccine Injury Act of 1986 provision that prohibits actions for damages exceeding $1,000 for vaccine-related injuries, unless the plaintiff first filed a petition for compensation under the National Vaccine Injury Compensation Program, according to court documents.
Sullivan agreed she did not file a petition through the program but argued that her claim of RSD does not "constitute SIRVA because it is a neurological injury and that this excludes her action from the Vaccine Act," according to the opinion.
The hospital's attorneys later filed a motion to dismiss the case for lack of subject matter jurisdiction based on it being barred by the Vaccine Act.
In March 2020, the trial court denied the motion to dismiss and a motion to certify the order for interlocutory appeal before the Superior Court accepted the hospital's petition for permission to appeal in November 2020.
"If plaintiff's RSD is a complication or sequela of her SIRVA, it can also qualify as an injury associated with the tetanus vaccine under the Vaccine Injury Table," Colins wrote, noting that RSD has previously been found by the U.S. Court of Federal Claims' Office of Special Masters to be compensable under the Vaccine Act.
Secondly, even if Sullivan's RSD is not a vaccine-related injury, the other claimed injuries for which she seeks damages are listed on the Vaccine Injury Table, requiring her to exhaust remedies under the program prior to bringing a tort action, the panel said.
Editor's Note: While this decision is not directly insurance-related, in today's climate, any discussion of vaccinations and associated remedies is relevant. In this case, the injured party attempted to file a medical malpractice claim after being administered a tetanus vaccine. If a medical malpractice claim makes it further into the litigation process, the medical malpractice insurer will respond. Doctor's or professional liability insurance may also respond, depending on the facts of the case including who administered the vaccination in question. We will keep an eye on this and other vaccination decisions in light of the current tumultuous vaccination climate.