Medical Journal Not Liable for Allegedly Flawed Case Study
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 plexus—the 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.
"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.
Elsevier’s lawyer, William Strong of Boston’s Kotin, Crabtree & Strong, referred questions to his client. In an e-mailed statement, Elsevier deputy general counsel Paul Doda said the company was gratified even though the First Circuit did not reach the First Amendment issues.
"Elsevier strongly believes that the cure for any allegedly false scientific publication is full debate within the scientific community, not lawsuits against authors and publishers," Doda said.
Salamon and the Bond Clinic’s lawyer Chad Brouillard of Foster & Eldridge in Cambridge, Mass., did not respond to requests for comment. The clinic declined to comment and Dr. Salamon did not respond.
Lerner’s lawyers at Boston-based Martin, Magnuson, McCarthy & Kenney also did not respond.