Medical Journal Not Liable for Allegedly Flawed Case Study

, The Litigation Daily


This story originally appeared in The National Law Journal, an American Lawyer affiliate.

A federal appeals court has shot down a Massachusetts consumer protection case against two doctors, a medical journal and its publisher over an allegedly flawed article cited by defendants in birth-injury medical malpractice cases.

That means plaintiffs’ attorneys will have to challenge the article’s validity in each case in which the defense wishes to cite it.

The U.S. Court of Appeals for the First Circuit on Wednesday affirmed District of Massachusetts Judge Nathaniel Gorton’s March 2012 dismissal of A.G. v. Elsevier Inc.

The plaintiffs were two minors who suffered permanent birth injuries to the brachial plexusthe nerves that control the shoulder, arms and hands.

The malpractice defense lawyers cited a case report published in Elsevier Inc.’s American Journal of Obstetrics and Gynecology. The article cited a permanent brachial plexus injury that purportedly happened without either doctor-applied traction or because the baby’s shoulder became stuck in the birth canal for too long.

The plaintiffs also sued the article’s authors, doctors Henry Lerner and Eva Salamon, and the Bond Clinic, where Salamon practices. They claimed that the records in the case discussed in the article and the doctors’ testimony in other cases proved the article’s conclusions wrong.

"The plaintiffs' theory of the case is imaginative but unpersuasive," Senior Judge Bruce Selya wrote in an opinion handed down on Wednesday, a mere month after the circuit heard oral arguments. Judge O. Rogeriee Thompson and senior judge Kermit Lipez joined him.

The plaintiffs couldn’t prove that the journal article caused the unfavorable verdicts in their malpractice cases, so causation is unprovable and "wholly speculative," Selya wrote.

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," he concluded. But, "in stark contrast," the plaintiffs have no facts to prove the uses of the case report caused the verdicts.

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.

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