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Attack on Shoulder Dystocia Article Fails


An interesting decision from the First Circuit shot down the attempt of two unsuccessful plaintiffs to mount a collateral attack on the truthfulness of a medical journal article they claim unfairly damaged their malpractice cases.

The plaintiffs in A.G. v. Elsevier, Inc. had suffered adverse jury verdicts in cases involving the alleged mismanagement of shoulder dystocia, resulting in brachial plexus injuries to two children.  Both plaintiffs’ obstetric malpractice claims were tried on juries (in Virginia and Illinois), resulting in verdicts for the defendant doctors.  The plaintiffs then joined forces to file suit in Massachusetts federal district court against the American College of Obstetrics & Gynecology (ACOG) and Elsevier Publishing, as well as the journal article’s co-authors, Massachusetts obstetrician Henry Lerner M.D. and Eva Salamon M.D.—who was also the delivering obstetrician in the reported case.

According to the subsequent federal complaint, prominent among the evidence at each malpractice trial was an article entitled Permanent Brachial Plexus Injury Following Vaginal Delivery Without Physician Traction or Shoulder Dystocia, authored by Lerner and Salamon and published in the journal of the American College of Obstetrics & Gynecology (ACOG).  The defense in each case argued that this was evidence that there were other causes for brachial plexus injuries apart from obstetric negligence.

Unfortunately for Lerner, a vocal advocate for “tort reform,” lecturer on the defense of malpractice cases, and a frequent defense witness, his recitation of the facts—specifically the assumption that there was no shoulder dystocia and no traction used in the delivery—was apparently untrue.  For example, according to the First Circuit opinion, the plaintiffs claimed that Lerner never read the labor and delivery record—which contained some evidence of shoulder dystocia—before writing the article.  Further, Salamon, the delivering obstetrician, admitted under oath that she applied traction in all deliveries–directly contradicting the article’s title.  This, the plaintiff patients’ lawyer embarked on a campaign to elicit a retraction of the article from the ACOG.  Not surprisingly, those efforts failed—the article has become quite useful in the defense of shoulder dystocia malpractice cases!

Finding that the claim that the alleged falsity of the article caused the adverse jury verdicts failed to reach the “plateau of plausibility under [Ashcroft v.] Iqbal and [Bell Atlantic Co. v.] Twombly,” the First Circuit affirmed the district court’s order dismissing the case.  While noting that, based on the factual allegations in the complaint, the plaintiffs had “more than a gambler’s chance of proving fraud,” the Court noted that there were no facts to support the conclusory statement in the complaint that the allegedly false article was the cause of the defense verdicts.  Thus, under the federal standards, which require a plaintiff to plead specific facts in support of his legal allegations, the complaint was properly dismissed.

The difficulty in proving the effectiveness of this article on any given jury verdict is obvious–without the ability to obtain testimony from the jurors about their thought process, which is prohibited almost everywhere–claims like A.G.’s are bound to fail.  However, this does not mean that plaintiffs should simply accept without question medical articles like Lerner and Salamon’s and others of their ilk.  Plaintiffs’ lawyers need to fight aggressively against articles based on poor science or incomplete or misleading facts.

Read the First Circuit’s opinion in A.G. v. Elsevier, Inc. here.

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