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Retraction Watch

Tracking retractions as a window into the scientific process

Federal court rebuffs request to discredit article that malpractice lawyers want retracted

with 30 comments

AJOGWe’re a bit late to this, but a Federal court in Massachusetts last fall heard a medical malpractice case with fascinating implications for journals.

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

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Written by Adam Marcus

January 3, 2014 at 12:42 pm

30 Responses

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  1. That is why research should be carried out by impartial accountable bodies, not by individuals who have compelling interests in advancing their careers. Currently most academics publish under duress or for secondary gains

    aceil

    January 3, 2014 at 12:57 pm

  2. If one believes that such situations are an aberration, or that such things can’t be purposeful, I recommend a perusal of “League of Denial”. Among other things, it depicts the NFL’s publication of bogus research to bolster their claim that concussions obtained in football are not linked to long-term brain damage in their players.

    LivingDonor101

    January 3, 2014 at 1:09 pm

  3. Could you rephrase the title with some more negatives?

    Michael Kovari

    January 3, 2014 at 1:26 pm

  4. Everyone, don’t underestimate the threat presented by this legal action. The plaintiffs were attempting to force the retraction of a paper because the paper contradicted their claims in a legal action. If allowed, this would upset scientific publication in the US forever.

    As far as I can tell, they have little reason to think the paper is fraudulent. They are merely making that claim in court because the paper embarrasses their legal argument. The are trying to save themselves the trouble of arguing about this paper in court (with their own experts) by having the paper retracted. No doubt they were hoping the journal would cave under threat of legal action.

    Fortunately this court ruled against them in strong terms (i.e. even if their claim was true it would be impossible to prove a causal link with any specific harm). I think we have dodged a bullet without realizing it and can be thankful that there is at least one judge with a sense of proportion and logic.

    Dan Zabetakis

    January 3, 2014 at 2:46 pm

    • I see what your saying but didn’t the judge also comment that they “have more than a gambler’s chance of proving fraud”. It seems as if the article may be fraudulent. While I agree that the issue of retractions should be dealt with outside of court, there is the issue of the potential severity of a fraudulent paper remaining in the literature. This should not be taken likely. I would like to hear the journal’s reasoning for refusing to retract…

      MH

      January 3, 2014 at 2:59 pm

      • Besides, how can one ( unsupported?) case report represent a binding authority in a legal argument?

        aceil

        January 3, 2014 at 3:10 pm

        • I don’t disagree. My point is that scientific research is being presented to a jury who is probably not well versed in how science publications work and likely don’t make the distinction of only being shown in one study. After all, the abstract did claim that it “demonstrates unequivocally”. I think one of the points of this post is that scientific literature can have impact beyond the realm of scientists….so – let’s strive for accuracy and ethics.

          MH

          January 3, 2014 at 3:16 pm

          • It is expert witnesses who present scientific opinions to juries. The plaintiffs are free to hire their own experts to offer an alternative view of this paper, or to explain why it is wrong. That is the proper venue for challenging the legal aspects of this work. The problem is that juries have sided with the experts who cite this work rather than the plaintiffs. Thus we have a typical lawyerly solution: sue the journal that published the work you don’t like.

            Dan Zabetakis

            January 3, 2014 at 4:50 pm

      • What is a “gambler’s chance”? We don’t talk about probabilities of proving something is fraudulent in science. It doesn’t seem that the plaintiffs have made their case clear at any point.

        Note that the authors, the journal, and the sponsoring organization have all refused to retract the paper. Surely if there is something wrong with the paper the plaintiffs could explain it simply and clearly (even here on RW if nowhere else).

        Dan Zabetakis

        January 3, 2014 at 4:44 pm

  5. Quoting Dan Zabetakis: “The plaintiffs were attempting to force the retraction of a paper because the paper contradicted their claims in a legal action. If allowed, this would upset scientific publication in the US forever.”

    Retraction is beside the point. The plaintiffs were trying to make scholars liable for allegedly fraudulent scientific conduct. One might ask why scholars shouldn’t be liable, if fraud can indeed by proven. In this case, the court didn’t allow that allegation to be judged on its merits, which is understandably disappointing to the plaintiffs.

    What is really at stake here is to what extent research misconduct can be subject to court action. On the one hand, allowing such court action might deter scientific fraud. On the other hand, it could invite a wave of frivolous litigation. Let’s say somebody finds that some chemical compound causes cancer. One can easily imagine that the chemical industry would try attacking the researchers in court. The consequence would be self-censorship and the suppression of results that go against powerful interests.

    Let’s be clear that we have that already. There is already a tendency that science is subordinated to corporate interests. Nobody believes even for a microsecond that that GMO paper would have been retracted (without evidence of fraud) if it weren’t for its results. And we all know how much medical literature is tainted by undeclared conflicts of interest.

    Where does that leave us? At the minimum, science needs more credible and more rigorous mechanisms for dealing with fraud and misconduct. Until we get that, don’t be surprised if people appeal to the courts, and don’t expect the courts to always be willing to whitewash the scientists.

    uarktransparency

    January 6, 2014 at 12:11 pm

    • Absolutely true.

      aceil

      January 6, 2014 at 2:12 pm

    • I have read with great interest the comments posted concerning my attempt to hold the American Journal of Obstetrics and Gynecology and the authors of a fraudulent medical article responsible for their actions. It stunning to me that some many uneducated comments could be produced by an otherwise intelligent community.

      Now for the actual facts…..

      Shoulder dystocia is a medical condition that occurs during delivery when one or both of the babies shoulders are unable to navigate the mothers pubic bone. In the presence of shoulder dystocia the baby’s head will deliver but the body will not follow as it is impinged on the pubic bone. This is an obstetrical emergency. Ob/Gyn’s are taught certain maneuvers to perform to release the shoulder without causing injury to the baby. All ob/gyn’s are taught to avoid placing too much traction, pulling to hard, on the baby’s head as that will not release the shoulder and can cause permanent damage to the brachial plexus bundle that runs from the spinal column down each of our arms controlling hand and shoulder function.

      The avoidance of excessive traction has been know and taught since Dr. Sever first discussed obstetrical brachial plexus injury 90 years ago.

      In an effort to protect negligent physicians that used to much traction and caused permanent brachial plexus injury some ob/gyn’s tried to come up with other theories of how the injury could occur. The theory, that the mother’s maternal ouching forces on their own could cause injury has been out forth by a biomechanics engineer in Michigan. This research and literature has been widely attacked and has in fact been rejected by several courts in this country.

      The case report in question from Dr. Lerner suggests that it is the first reported instance of a permanent brachial plexus injury in the absence of shoulder dystocia and physician applied traction. The care report uses the term “unequivocal”. This case report was hailed as proof a permanent brachial plexus injury could be caused by other than physician traction and has been the stalwart of the defense since it’s publication.

      You can imagine my surprise when I learned of the publication of case report as I had represented the plaintiffs in the case in the State of Florida at which time the case was settled. At the time of the publication of the case report i had medical records that indicated there was a shoulder dystocia present at delivery and that the delivering doctor, Eva Salamon, M.D. did apply traction.

      Following the publication of the case report I did write to then editor of the American Journal of Obstetrics & Gynecology, Thomas M. Garite, M.D. informing him that case report was not correct. As I informed Dr. Garite the delivery that was the subject of the article was the basis of medical malpractice litigation in the State of Florida. In the case of Wilson v. Eva Salamon, M.D. it was alleged that Dr. Salamon applied excessive traction to the head and neck of Glorianne Wilson causing permanent brachial plexus injury to the child.

      On the complication sheet prepared by the nurse the box for shoulder dystocia was checked and then crossed out by Dr. Salamon and “soft tissue dystocia” is written in. There is also a note in the child’s hospital record that there was a shoulder dystocia at birth. Also, later in the child’s treatment records from the pediatrician it states “ classic erbs palsy” which he relates to classic shoulder dystocia.

      In the deposition transcript of Dr. Salamon taken on September 7, 2006, pages of which are attached she testified under oath that she did in fact use traction in the delivery of Glorianne Wilson. On page 24 of the deposition when asked she testified:

      A. For every delivery I use gentle downward traction.
      Q Okay. Are you more particular about that when you diagnose a shoulder dystocia, or suspect a shoulder dystocia should I say?
      A. No because I’m careful every time I do a delivery.
      Q. And you’re careful to use gentle downward traction in light of a shoulder dystocia because more traction could result in a brachial plexus injury.
      A. Yes.

      On Page 39 Dr. Salamon again acknowledges traction:

      A. I did not feel there was a shoulder dystocia because the baby delivered with ease, without an undue increased traction required to deliver. So to me it was a normal delivery.

      Further, the Delivery/Perioperative Record clearly states “ mild shoulder dystocia @ delivery”.

      Certainly Dr. Salamon and Dr. Lerner were aware that the case report stating that there was no physician applied traction or shoulder dystocia was not true and correct. Dr. Lerner was hired to be the medical expert for Dr. Salamon in the case. It is assumed that prior to providing his medical expert opinion Dr. Lerner reviewed the medical records, including the Delivery/Perioperative Record, and most likely also reviewed the deposition transcript of Dr. Salamon. Therefore, he should also have known that case report he later prepared with Dr. Salamon was false as written.

      The Wilson v. Salamon, M.D. case was settled prior to trial.

      Following my March 31, 2008 email to the American Journal of Obstetrics & Gynecology it was learned that Dr. Lerner to be a medical expert in Illinois in defense of a physician involved in litigation concerning a brachial plexus injury. The case the testified in was Thacker v. Cortez, M.D. At the Thacker v. Cortez, M.D. trial Dr. Lerner was cross-examined about the Lerner/Salamon case report and under oath provided shocking testimony.

      At trial, under oath, Dr. Lerner testified that there was some evidence of traction at delivery and that the medical records did in fact indicate shoulder dystocia. He went on to testify that apparently neither he nor Dr. Salamon read the delivery record before preparing the case report. It is difficult to believe that the delivering physician and the stated medical expert in her case never read the delivery record before submitting a case report to a noted Journal.

      Following your testimony in Thacker v. Cortez, M.D., the attorney for the Thacker family, Robert Bazier, wrote to Thomas Garite, M.D. demanding a retraction of the case report.

      At some point I did receive an email from Sandra Perrine, Managing Editor of the Journal, informing me that the Editors of the Journal has decided to convene an “independent” panel to review my allegation. Ms. Perrine also requested a copy of any and all birth videos. A video of the delivery does exist and it was provided to the Editors. In the video the mother’s leg blocks the view of the physicians hands at delivery leaving of it no value in evaluating the issue of traction.

      On December 18, 2008 I did receive a letter addressed to me, Edith Gurewitsch, M.D. and Robert Allen, PhD, from Thomas Garite, M.D. stating that after consideration the Journal would take no action concerning the article.

      There is no question that you, Dr. Salamon and the Editors of the Journal of Obstetrics & Gynecology and the American College of Obstetrics and Gynecology know that literature published in the Journal is referenced by medical experts in medical malpractice trials. In fact, Dr. Lerner is a frequent medical expert defending doctors in medical malpractice cases.

      It was alleged that Drs. Lerner and Salamon prepared and submitted for publication a case report that was inaccurate, misleading and did not actually reflect the facts of the delivery in question. Prior to submitting the case report for publication, a case report Dr. Lerner knew would be used and referenced by medical experts in trials across the country, he had a legal duty to insure the accuracy of the report and to honestly report the facts of the case. Whether he failed to properly investigate the facts of the case or intentionally ignored the medical records and deposition testimony of the Wilson v. Salamon case is not of consequence.

      Subsequently, the false medical article became the cornerstone of the defense of at two medical malpractice cases in which the jury found for the doctors based upon the article.

      Had the Lerner/Salamon article not been presented to the Journal it could not have been referenced at the trial of Clark v. Moore, M.D. and would not have been the basis of the jury verdict in favor of Dr. Moore.

      If you are truly men and women of science, you should join with my effort to stop fraudulent medical literature from being published. Fraudulent medical literature demeans all of the honest and hard working researchers. Fraudulent literature causes the public and medical community to lose trust in honest and good work being done. If you are working hard and searching for true answers you should not accept the publication of fraudulent medical literature.

      In fact, although the court of appeals did not allow the suit to proceed, at least two courts in the country have determined the Lerner case report should not be allowed in Court due to questions about the veracity.

      The Court of Appeals did not address the issue of fraud, nor did the defendants ever argue the case report was true and accurate.

      Now you know the actual facts……….

      Ken Levine

      Kenneth Levine & Associates, LLC.
      32 Kent Street
      Brookline, Massachusetts 02445
      617-566-2700
      617-566-6144 (fax)
      Klevine@Klevinelaw.com
      http://www.Klevinelaw.com

      Ken Levine

      January 6, 2014 at 3:24 pm

      • “Now for the actual facts…..”

        The problem is that you are, as a lawyer, drawing inferences from the statements and testimony of MDs, none of whom agree with your interpretations. Your inferences, views, and conclusions are not going to be considered significant when contrasted with experts in medicine.

        You have thrown around the word ‘fraud’ but when the journal has investigated and decided to take no action, where does that leave you?

        Could you find no qualified OBGYN specialists to testify themselves as to what is wrong with this paper and with the testimony of the other doctors?

        I am not an MD and am not qualified to offer a technical opinion. But I am qualified to offer an opinion on this:

        “Had the Lerner/Salamon article not been presented to the Journal it could not have been referenced at the trial of Clark v. Moore, M.D. and would not have been the basis of the jury verdict in favor of Dr. Moore.”

        This is an invalid basis for challenging a medical or scientific paper.

        Dan Zabetakis

        January 6, 2014 at 4:55 pm

  6. “The plaintiffs were trying to make scholars liable for allegedly fraudulent scientific conduct. ”

    No. The plaintiffs were trying to make the journal and the sponsoring organization liable for harm allegedly caused by a third party who may or may not have read the paper.

    “What is really at stake here is to what extent research misconduct can be subject to court action.”

    Again, no. What was at stake was whether the courts could (would) hold liable organizations (or individuals) who were not involved in the alleged harmful behavior. The court wisely ruled that even if the allegations were proved true there would be no way to establish a causal chain.

    As far as I know, the plaintiffs have not stated where they think there is a problem with this paper (if I am wrong someone can correct me). They merely want it retracted because defense experts have cited it in previous lawsuits, and the defense has been effective.

    The case is not one of being held accountable for misconduct (the authors, journal, and sponsoring organization refuse to retract the paper) but being held liable for alleged harm because these people don’t like your conclusions.

    Dan Zabetakis

    January 6, 2014 at 2:22 pm

    • Please read what I wrote. This is not a scientific article. If it were it would not be challenged. It is a dishonest case report not based in any way upon the actual facts. This is more than research misconduct. If you had read what I wrote you could not say you do understand the plaintiff’s argument. It has nothing to do with this being cited in previous lawsuits. The conclusions are based on FRAUD. I thought that was clear in what I wrote.

      Sorry, if you are not going to make the effort to understand the real issues, i have no time for this nonsense.

      Ken Levine

      Kenneth Levine

      January 6, 2014 at 5:43 pm

      • “This is not a scientific article. If it were it would not be challenged. It is a dishonest case report not based in any way upon the actual facts.”

        Again, the problem is that you stand on one side while the authors, journal editors, reviewers, and the sponsoring organization all stand on the other. On the one hand they are all recognizable experts in the field. On the other you are a lawyer who wishes this paper didn’t exist because it makes lawsuits more difficult.

        Where are the expert medical opinions that side with you? Why weren’t they sufficient to overcome the resistance of the journal and the organization? Indeed why did you not line up 10-15 OBGYNs to testify that this paper is flawed? I would expect if the paper were as obviously fraudulent as you say that many expert OBGYNs would volunteer to testify in order to protect future patients from a clearly dangerous procedure.

        Dan Zabetakis

        January 6, 2014 at 10:59 pm

      • What if a court orders an independent investigation of the prevalence of brachial plexus injury among infants delivered without the use of traction?

        aceil

        January 7, 2014 at 1:59 pm

        • That issue has been studied for years in the medical community. There is not one case report in the history of medicine of a permanent brachial plexus injury in the absence of shoulder dystocia and traction. Thats is why the Lerner article is so dangerous. It claims to be a report of such a situation when in fact it is fraud. If the article were true it would be the first known report in the history of medical science of a permanent injury in the absence of traction. The Lerner article tells jury something is possible that has never before happened and that medical science otherwise believes cannot happen. If this were a new finding based upon honest research it would be applauded and recognized as a breakthrough. If the paper is based upon dishonest facts and fraud it is a paper only intended to sway medical legal cases and has no integrity.

          Ken Levine

          January 7, 2014 at 2:27 pm

          • “There is not one case report in the history of medicine of a permanent brachial plexus injury in the absence of shoulder dystocia and traction.”

            Well, there is one.

            That’s your problem, you are reaching for a tautology. Your reasoning is like this:

            1) No papers say X.

            2) Paper A says X.

            3) Therefor paper A is fraudulent.

            It’s fallacious and I think that is why you are not getting anywhere with it.

            Dan Zabetakis

            January 7, 2014 at 5:12 pm

        • No court would ever order such a thing. Courts don’t have funding to support research.

          The proper person to make such a case is the plaintiff’s expert witnesses. Again I ask, if this paper is so obviously fraudulent, why were these experts unable to convince a jury or judge?

          Dan Zabetakis

          January 7, 2014 at 5:07 pm

    • “As far as I know, the plaintiffs have not stated where they think there is a problem with this paper”

      How about: “Drs. Lerner and Salamon prepared and submitted for publication a case report that was inaccurate, misleading and did not actually reflect the facts of the delivery in question.”

      uarktransparency

      January 7, 2014 at 10:14 am

      • “How about: “Drs. Lerner and Salamon prepared and submitted… ”

        Based on what we know this statement has to be rejected. The authors, journal, and sponsoring organization all stand behind the report. The journal conducted an independent analysis and concluded there was no basis for a retraction.

        The lengthy post by Ken Levine (and I really appreciate the chance to here the other side) has the appearance of ‘quote hunting’. It’s a technique used by creationists, climate change deniers, pro-smoking activists, and others. They look for quotes, statements, or phrases used by scientists that can be twisted or hammered out of context into the appearance of a contradiction.

        Dan Zabetakis

        January 7, 2014 at 11:07 am

        • Dr. Lerner and Dr. Salamon did prepare the report. Dr. Salamon was the delivering doctor and Dr. Lerner was the expert in the case for the defense. Their names and no others appear on the report. There was no peer review that included the underlying medical record and deposition. Thats the point. If the medical records and depositions were reviewed by an “independent ” authority prior to the article being published, it would have been rejected. Lerner and Salomon submitted false report and no one checked. Of course after the fact the Journal made every effort to cover themselves and not look foolish.

          This is serious issue and before you comment you should read and learn the facts.

          Also, the correct usage of the word “here” in the context is spelled “hear”.

          You have no idea what you are talking about. I do not know who you are, but before you write about a subject you should learn the facts.

          Ken Levine

          January 7, 2014 at 11:18 am

          • This is a major problem with serious concerns ,and can be summarized as follows:
            1. Nobody verifies the validity of any research prior to publishing
            2. Peer reviewers are not field experts and are incompetent in most cases ( I am one of those who despite declining to review for a journal, keep getting invitations to review papers that fall outside the scope of my expertise).
            3. A cover up usually follows any investigation
            4. Those fraudsters who get exposed may land better jobs
            5. It is almost impossible to purify published literature.

            The issue is which literature to trust when most of it is based on what uncensored authors tell the world?

            aceil

            January 7, 2014 at 1:36 pm

          • “If the medical records and depositions were reviewed by an “independent ” authority prior to the article being published, it would have been rejected.”

            This is merely a conjecture on your part.

            ” Of course after the fact the Journal made every effort to cover themselves and not look foolish.”

            And this is merely an assertion.

            You wrote yourself that the journal had carried out an independent investigation into the paper and concluded there was no cause to take further action. The fact that the decision was not to your liking does not make it corrupt or unethical.

            Dan Zabetakis

            January 7, 2014 at 5:20 pm

            • Well Dan, you win. Other than not knowing the medicine, the law or the facts you are exactly right. Despite the years my firm has spend studying the literature, you clearly know more about the medicine than I do. You obviously also understand the law better and certainly have mastered all of the facts and nuances. You must be the smartest guy in the room whatever the subject. I will rejoin the argument when you actually study the subject and can bring something to the table

              Kenneth Levine

              January 7, 2014 at 5:47 pm

            • actually Dan, I am being unfair. I am pleased to further discuss the issue with you after you answer a few questions….

              1. What is shoulder dystocia

              2. Please describe the manuevers used to alleviate shoulder dystocia

              3. Who is Robert Allen

              4. What is the theory of maternal forces

              5. Who is Michelle Grimm

              6. Who is Robert Gherman

              7. Why is the Muhammed case in the state of new york so significant on this issue

              8. Who is Edith Gurewitsch

              9. Is there a different mechanism of injury if the posterior shoulder is injured rather than the anterior.

              10. where is the sacral promontory and why is it important to this discussion

              11.Why did the researched select rats necks to simulate baby’s necks.

              12. What is the Madymo model

              13. who is James O’Leary

              14. who sponsored Dr. Gurewitsch 2006 paper on the causes of brachial plexus injury.

              15. who is Dr. DeMott and have you read the Green bay study

              16. Who is Scott Kozin

              need I go one ?

              you have no idea what you are talking about on this subject.

              Kenneth Levine

              January 7, 2014 at 6:10 pm

  7. “Well Dan, you win.”

    Yes, that has been clear for a while.

    “need I go [on] ?”

    No. Long words and lists of questions are neither intimidating nor a proper argument.

    Dan Zabetakis

    January 7, 2014 at 10:55 pm

    • Wow. Strip away all other aspects of this particular case. Forget all the legal actions. If a case report is in the literature and the cornerstone of the conclusions of the report were based on an absolute inaccuracy, would you be okay with it standing? That is what this boils down to in my mind. If what Mr. Levine says is true regarding the facts of the case (not the interpretation but the facts of whether the report contains fundamental inaccuracies regarding traction) would you not demand a retraction based on principle alone?

      MH

      January 8, 2014 at 1:03 pm

  8. ” If a case report is in the literature and the cornerstone of the conclusions of the report were based on an absolute inaccuracy, would you be okay with it standing?”

    If it were clear that the report had fundamental flaws, then a retraction would be appropriate.

    But when there is controversy, some people say it is and some people say it isn’t, then the paper stands.

    Note that most of the retractions posted here are retracted by the authors (albeit often under duress). Most of the rest are retracted after an investigation and finding of wrongdoing by some authority (such as the ORI or a university). In this case the authors, the journal, the sponsoring organization, and apparently an independent panel all agree that no action should be taken. What then would be the basis for a retraction?

    Dan Zabetakis

    January 8, 2014 at 1:39 pm


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