A federal appeals court is weighing whether medical malpractice plaintiffs who lost birth-injury cases in which the defense relied on a medical article the plaintiffs believe is false can sue the doctors who wrote it and the publishers.
The U.S. Court of Appeals for the First Circuit must decide whether to revive the plaintiffs’ case under a Massachusetts consumer protection law that allows for treble damages.
“These plaintiffs did not get the benefit of a fair trial because of this article,” plaintiffs attorney Kenneth Levine of Kenneth M. Levine & Associates of Brookline, Mass., told the court on September 11 in A.G. v. Elsevier Inc.
The plaintiffs are two minors who suffered permanent birth injuries to the brachial plexus, nerves that control the shoulder, arms and hands. Each filed claims against their doctors in Virginia and Illinois. The role of physician-applied traction was an issue in each case.
The defense teams relied on a case report written by doctors Henry Lerner and Eva Salamon and published by Elsevier Inc. The article documented a permanent brachial plexus injury that purportedly happened without doctor-applied traction or in a situation in which the baby’s shoulder was stuck in the birth canal for too long.
The plaintiffs say they’ve debunked the article by reviewing the records in the central case and the doctors’ testimony in other cases.
The Illinois plaintiff lost an appeal to the Illinois Appellate Court, which ruled in 2010 that the article had not prejudiced his case.
The October 2011 Massachusetts lawsuit claimed that the “writing, submitting for publication, publishing, and failing to retract an article stating false medical conclusions” was tantamount to unfair or deceptive practices under state law. Elsevier’s American Journal of Obstetrics and Gynecology, which published the article, and the Bond Clinic, where Salamon practices, are also defendants.
District of Massachusetts Judge Nathaniel Gorton dismissed the claim in March 2012.
The plaintiffs’ First Circuit brief claimed the doctors’ conclusion was flawed and that “they willfully and fraudulently represented and further perpetuated” the false article. They claimed Elsevier should be liable for refusing to retract the article or print a clarification.
Elsevier’s brief argued that the plaintiffs have produced no facts showing that any defendant’s conduct caused the malpractice jury trial outcomes. As for its own role, Elsevier argued that applying a state consumer protection law to its published material would violate its free-speech right under the First Amendment.
The doctors made similar arguments. They claimed the plaintiffs have no way to prove their state court juries would have sided with them absent the case report—and that the consumer protection law at issue only applies to allegedly unfair business conduct in Massachusetts.
Judge O. Rogeriee Thompson sat on the panel with senior judges Kermit Lipez and Bruce Selya.
Selya told Levine that he was struggling to see how the case could possible qualify under the state’s consumer protection law. Levine replied that the defendants’ actions, in this case the article, could affect the citizens of Massachusetts, which is a requirement for bringing consumer protection claims.
After a lengthy interchange about ways the trial lawyers could have sought to disqualify the article as evidence, Selya observed: “You want us to take what seems to me is an end-justifies-the-means approach.”
Later, William Strong of Boston’s Kotin, Crabtree & Strong argued for Elsevier that there’s no such thing as publishing malpractice. “If we go down the road of treating this as a malpractice type of action, we’re getting into very deep water,” he said.
Chad Brouillard of Foster & Eldridge in Cambridge, Mass., who represents Dr. Salamon and the Bond Clinic, boiled his argument down to why the parties from the various states shouldn’t face this case.
“This is the type of case that screams out a personal jurisdiction problem,” Brouillard said.
Sheri Qualters can be contacted at firstname.lastname@example.org.