SANTANA v. PATEL (2024)

Order, Supreme Court, Bronx County (Joseph E. Capella, J.), entered on or about November 24, 2023, which granted defendants’ motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

In this medical malpractice action, plaintiff alleges that she suffered shoulder injuries resulting from defendants’ improper administration of the flu vaccine on December 17, 2015.  Defendants moved to dismiss the complaint based on the National Childhood Vaccine Injury Act of 1986 (NCVIA) (42 USC § 300aa–1 et seq.), which provides a no-fault National Vaccine Injury Compensation Program (NVICP) for “vaccine-related injury or death” (42 USC § 300aa–15[a]).  Under the NCVIA, a plaintiff seeking in excess of a $1,000 in damages against a “vaccine administrator or manufacturer” arising from a “vaccine-related injury or death associated with the administration of a vaccine” must file for compensation under the NVICP;  otherwise, the court must dismiss the action (see § 300aa–11[a][2][B];  see Crucen v. Leary, 55 A.D.3d 510, 511, 867 N.Y.S.2d 49 [1st Dept. 2008]).

Plaintiff contends that she was not required to file a petition for compensation under NCVIA because her alleged injuries are the result of the improper administration of the vaccine, not the vaccine itself.  However, the Vaccine Injury Table lists “Shoulder Injury Related to Vaccine Administration” (SIRVA) as an injury associated with the flu vaccine (42 CFR 100.3[a], [c][10]).  Plaintiff's alleged injuries, including immediate shoulder pain, decreased range of motion, and injuries to her musculoskeletal structure, fall within the ambit of a SIRVA (see Hallowell v. Safeway, Inc., 2018 WL 294497, *2, 2018 U.S. Dist LEXIS 1710, *6 [WD Wash Jan 4, 2018, No. C16–972 (TSZ)];  Sullivan v. Holy Redeemer Hosp. and Med. Ctr., 263 A.3d 1159, 1161, 1164–1167 [Pa. Super. 2021], allowance of appeal denied 280 A.3d 872 [2022]).  Since plaintiff's injuries were included in the Vaccine Injury Table, they are deemed a “vaccine-related injury” for the purposes of the statute (42 USC § 300aa–33[5]).  Thus, the complaint was properly dismissed as barred by NCVIA (see Crucen, 55 A.D.3d at 511, 867 N.Y.S.2d 49).

We have considered plaintiff's remaining contentions and find them unavailing.