Federal court rebuffs request to discredit article that malpractice lawyers want retracted
The case involved allegations by the plaintiffs — two children who had suffered permanent birth defects and their mothers — that they had lost previous malpractice suits because a fraudulent case report was being used to bolster the defense.
The case targeted two ob-gyns, Henry Lerner, of Harvard, and Eva Salamon, of the Bond Clinic, in Winter Haven, Fla., who had published the case study in question. It also named the clinic itself and the American Journal of Obstetrics & Gynecology, which published the article in early 2008.
The article, titled “Permanent brachial plexus injury following vaginal delivery without physician traction or shoulder dystocia,” purported to show:
A vaginal delivery that resulted in a permanent brachial plexus injury unassociated with shoulder dystocia or physician traction is reported by the delivering physician. This case demonstrates unequivocally that not all permanent brachial plexus injury at vaginal birth is due to physician traction.
According to the plaintiffs in the suit, the article was fabricated and should be retracted — a request they made to the journal before filing the lawsuit.
As the court decision states:
Their complaint asserted a cause of action under chapter 93A, section 9, of the Massachusetts General Laws, contending that the Case Report was false because the described delivery actually included both shoulder dystocia and the application of traction. They further alleged that the defendants engaged in fraudulent conduct by publishing the false Case Report and later refusing to retract it. To show harm sufficient to support their claim for damages, the plaintiffs averred that the Case Report had tipped the balance in their state-court malpractice trials.
Calling that argument “imaginative but unpersuasive,” the First Circuit Court of Appeals didn’t buy the claim:
Starting with the premise that the case report was false, they allege that the falsity “caused” the juries in the malpractice trials to find against them. This optimistic allegation overlooks that, for aught that appears, causation is unprovable here and, thus, the causation allegation is wholly speculative. Consequently, the plaintiffs’ claim does not reach the plateau of plausibility which, under Iqbal and Twombly, is the new normal in federal civil procedure.
What’s interesting from our perspective is that the court didn’t say the plaintiffs in the case hadn’t demonstrated that the AJOG article was false. Indeed, as the National Law Journal reported:
As for the raw facts about the doctors’ alleged actions concerning the case report, the plaintiffs “have more than a gambler’s chance of proving fraud,” senior Judge Bruce Selya concluded. But, “in stark contrast,” the plaintiffs have no facts to prove the uses of the case report caused the verdicts.
In other words, even if the case report is bogus, it wasn’t the only piece of evidence.
The National Law Journal article continues:
This case was the First Circuit’s opportunity to be gatekeepers over allegedly fraudulent literature and information that affects cases, according to plaintiffs’ lawyer Kenneth Levine of Kenneth M. Levine & Associates of Brookline, Mass., who tries birth injury cases around the United States.
“What they’ve done is given open season for experts to rely on questionable literature, knowing if the questionable literature is exposed there’s no remedy for the plaintiff,” Levine said.
In May 2011, Levine, who brought the Massachusetts suit, posted the following comment on a site called the United Brachial Plexus Network:
As many of you know for the past few years I have been fighting against a medical article published in the American Journal of Obstetrics and Gynecology written by Dr. Henry Lerner and Dr. Eva Salamon titled “Permanent Brachial Plexus Injury Following Vaginal Delivery Without Physician Traction or Shoulder Dystocia” The article claims to be the first case report of a delivery with a permanent brachial plexus injury in the absence of shoulder dystocia and clinician applied traction. Since its publication in 2008 this article has become the principle medical article used by the defense at brachial plexus trials to support the idea that permanent brachial plexus injury is not caused by physician applied traction but rather by the mothers maternal pushing forces. First, we know from every piece of credible medical research that the mothers maternal pushing forces are not strong enough to cause a permanent brachial plexus injury. Second, and more important, the article is fraud. In fact, for reasons I would be pleased to expand upon, I have evidence that in fact at the delivery that was the subject of the article there was a shoulder dystocia and traction was applied by the doctor.
When I first learned of the article I did write to the American Journal of Obstetrics and Gynecology and the American College of Obstetrics and Gynecology (ACOG), the organization that publishes the Journal, and demanded a retraction. Both the Journal and ACOG refused.
This article must be stopped. It has caused juries across the country to find against your children at trials of brachial plexus birth injury cases.In an effort to take down the article once and for all my firm is filing a lawsuit in the United States District Court in Massachusetts claiming that article is fraudulent and deceptive and therefore violates Massachusetts’ very strict consumer protection law.
This is the first time in the country that a consumer protection law has been used to fight against misleading and deceptive medical literature.
I am searching for any families who lost their brachial plexus case at trial in which the Lerner/Salamon article was referenced or discussed. If you lost your case at trial and am uncertain if this deceptive article was used by the defense please ask your lawyer. If this article was used at your trial I may be able to add you to the federal lawsuit. For some of you it may be a second chance to have your case heard. At the very least you will be helping us stop the use of this deceptive and misleading medical article.
I hope to hear from some of you. We must take every action to take down this article before it can be used against one more of your children. Thank you.
Of note, while Levine says the case report is widely used in courtrooms, it’s only been cited eight times by other scientific papers, according to Thomson Scientific’s Web of Knowledge. Also of note: AJOG has faced at least one other request for retraction from a lawyer. In that case, they retracted the paper.
Reason has more on the case here.
Hat tip: Skeptical Scalpel