Journal Article's Authors Not Responsible for Loss of Claim

Are there, or should there be, legal consequences for authors and publishers when medical journal articles do not state the truth, thereby causing harm? An interesting case on that issue, related to the prosecution of two medical malpractice cases in two different states, was recently decided in Massachusetts.

Background

The plaintiffs in Gorbey v. American Journal of Obstetrics and Gynecology, 2012 U.S. Dist. LEXIS 36450 (D. Ma. 3/16/12), were two children, one born in Virginia (Andrew Gorbey) and other in Illinois (Keenan Stapleton). Both suffered permanent brachial plexus injuries at birth. A brachial plexus injury is one that occurs when the nerves running from the spine to the shoulder, arm and hand are stretched or torn. A child born with such an injury may suffer loss of sensation in those areas, or even complete paralysis of the arm. Over the years, a popular theory has formed that the injury most likely comes about when shoulder dystocia ' a condition in which the baby's shoulder gets caught on the mother's pubic symphysis ' occurs, and the delivering doctor exerts too much traction (pressure) on the baby in order to facilitate delivery.

Both plaintiffs, through their representatives, brought medical malpractice suits against their mothers' obstetricians, each alleging they suffered permanent brachial plexus injuries after the defendants exerted too much traction on them during birth. Each doctor disagreed with that theory. For example, in the Illinois case, the doctor contended that the baby's injury occurred due to the force of the mother's uterine contractions while the child's left shoulder was caught on a ridge of the sacral promontory area of his spine.

Both plaintiffs lost their medical malpractice cases.

The Article in Question

The defense in each of the two lawsuits had cross-examined medical experts using an article published in the American Journal of Obstetrics and Gynecology, titled “Permanent Brachial Plexus Injury Following Vaginal Delivery Without Physician Traction or Shoulder Dystocia,” written by doctors Henry Lerner and Eva Salamon. It described a case study of one of Dr. Salamon's deliveries, in which the baby suffered a brachial plexus injury even though the delivery did not involve shoulder dystocia or physician traction. The article stated that this instance was “the first unambiguous case report” to demonstrate that a brachial plexus injury could happen without shoulder dystocia or a doctor exerting too much traction.

In Keenan Stapleton's case, heard in an Illinois trial court, the plaintiff's obstetrics expert, Dr. Stuart Edelberg, was cross-examined concerning the Salamon/Lerner article. He discounted the article's application to the case at hand, and later testified that Dr. Lerner had served not only as co-author of the article, but also as a medical expert in Dr. Salamon's defense of a medical malpractice case that flowed from the same birth chronicled in the article. Other journal articles in the same vein were used in Dr. Edelberg's cross-examination as well, but he opined that these were inapposite because they focused primarily on cases involving temporary, rather than permanent, brachial plexus injuries.

The Appeals

After losing their malpractice cases at trial, both the Illinois and Virginia plaintiffs appealed. Keenan Stapleton's appeal, before the Appellate Court of Illinois, First District, Fifth Division, centered on the use of the Salamon/Lerner article in cross-examining his medical expert. Stapleton v. Moore, 403 Ill. App. 3d 147 (2010). The appellants objected to not having been informed that the article would be used in questioning their medical expert. The appeals court found no error in this because state law does not compel pre-trial disclosure of that which will be used to cross-examine opposing opinion witnesses. In addition, the majority was satisfied with the trial court's finding that the article's authors were reliable sources, although the reliability of the contents of the article was never established. And, finally, the court found that the use of the article on cross-examination was not prejudicial to the plaintiff as it was “but one of various articles and texts used to impeach plaintiff's expert.”

The dissent pointed up several flaws with the majority's stance, including its finding that the plaintiff was not harmed by the introduction of the Salamon/Lerner article, especially since that article was brought up again in defense counsel's closing arguments. “The majority suggests that plaintiff's arguments about this article are much ado about nothing, because defendants also utilized several other articles in cross-examination of plaintiff's expert,” noted the dissent. “This strikes me as a rather cynical suggestion, authorizing a party to slip in patently unreliable literature before the jury as long as one softens the blow with some reliable texts and articles. It is not hyperbole to suggest that the Lerner and Salamon article went to the very heart of the claim of malpractice in this case. It directly suggested that Erb's palsy could occur in the complete absence of any known shoulder dystocia, merely as a result of the normal propulsive forces of labor. It also merits mention that the article in question is a case report and not a peer-reviewed article. A fair reading of the work product of this defendant/expert tag team suggests that the missive was penned more to assist litigants than to inform medical professionals, and this view was borne out by the testimony in the matter sub judice. More to the point, if defendant already had three other reliable sources at hand, the use of the facially unreliable article not only highlights the cumulative nature of the proof, but also its inherent prejudicial effect.”

Trying a Different Tack

Having failed to recover on their underlying medical malpractice claims, both the Illinois and Virginia plaintiffs brought suit against the authors, Drs. Salamon and Lerner, and against the article's publisher. They alleged the article was inaccurate, and was false and misleading in accordance with the Massachusetts Consumer Protection Act, Massachusetts General Law c. 93A (Chapter 93A), in that it did not accurately report what happened during the delivery it chronicled. The plaintiffs averred that the hospital records for the birth discussed in the article contradicted the article's recounting of the case, and that in depositions related to the medical malpractice suit stemming from that birth, both authors testified to facts that differed from those put forth in the article. The plaintiffs also claimed that, soon after publication, the publisher learned of discrepancies between the article's version of the birth and reality, yet refused to retract the article or to issue a clarifying statement once the truth was known. Because the plaintiffs blamed the article for the loss of their med-mal cases, they sought damages of $3 million each (the amount they said they would have won if they had prevailed in their underlying suits), along with an order prohibiting the use of the article in any future litigation.

To make a showing under Massachusetts's Chapter 93A, a plaintiff must prove that there was: 1) a deceptive act or practice on the part of the defendant; 2) an injury or loss suffered by the plaintiff; and 3) a causal connection between the defendant's deceptive act or practice and the plaintiff's injury. Tyler v. Michaels Stores Inc., 2012 U.S. Dist. LEXIS 1569 (D. Mass. 1/6/12). At issue in Gorbey was the causation element, as the plaintiffs had adequately alleged a deceptive act and an injury to survive a motion to dismiss.

The court characterized the plaintiffs' causation arguments as: 1) in each of their cases, defendant experts had introduced and relied upon the allegedly false article; 2) generally, defendants in medical malpractice actions have relied upon and will continue to rely upon the article; 3) but for the introduction of the deceptive article the plaintiffs would have prevailed in their medical malpractice suits; and 4) therefore, each plaintiff suffered damaged of $3 million. Of these, only the first ' that the article was introduced and relied upon by the defendant health care providers ' could qualify as a “fact,” said the court, and “[t]hat fact does not support a reasonable inference of materiality but instead establishes a mere possibility of materiality. In the absence of any factual content concerning, inter alia, how the article was used, what testimony concerning the article was offered or what other evidence was admitted, the mere fact of the admission of the article into evidence is insufficient to render the complaint plausible on its face.”

The Gorbey appellants also asked the court for leave to amend their complaint to include a fraud claim, which would have required them to show that: 1) the defendants made a false representation of material fact; 2) for the purpose of inducing the plaintiffs to act on that representations; and 3) the plaintiffs reasonably relied on that representation to their detriment. The court refused to allow the amendment, finding that the persons who might have relied on any alleged falsities were the jury members, not the infant plaintiffs; as third parties, the Gorbey appellants had no standing to sue.

Therefore, the court dismissed suit.

Conclusion

What doomed the case against the journal article's authors and publisher? The court faulted the lack of evidence of direct causation, and it is hard to imagine that an adequate presentation ' one that would have satisfied the court ' would have been possible. Like most medical malpractice cases, the two underlying birth-injury claims required testimony and evidence from a number of sources: fact witnesses, expert witnesses, medical records and more. Any number of influences could have led to the medical defendants' success in those cases, so an attempt to prove that the journal article was the one tipping point in the defense's favor ' the requisite “cause” of the plaintiff's loss ' would likely have been futile.

Although the outcome in Gorbey is soundly based in the law, one can easily empathize with the frustration that caused the plaintiffs to bring the suit. Scientific journals of all kinds attempt to vet their articles to make sure that their reputations as authoritative publications are maintained. Most contributors to those journals are also concerned with their reputations for integrity, and are loathe to submit anything they cannot fully back up. But although the veracity of the Salamon/Lerner article may indeed be all that it should be, there are certainly documented instances of journal articles that were not based on sound science. Because medical journals are widely seen as authoritative (though certainly not infallible), the harm that deliberately false articles could cause is easy to imagine. Doctors might be persuaded to give patients useless treatments, or withhold helpful ones. Litigants with meritorious claims or defenses might see their cases lost due to the seed of doubt planted in jurors' minds by a dubious article. And although a litigant might be able to call on experts to counter the damage done by the introduction of a faulty scientific journal article, this may be impossible when at the last minute, and without notice ' as in Stapleton ' an article is sprung on an unsuspecting opinion witness during cross-examination.

Janice G. Inman is Editor-in-Chief of this newsletter. 

Are there, or should there be, legal consequences for authors and publishers when medical journal articles do not state the truth, thereby causing harm? An interesting case on that issue, related to the prosecution of two medical malpractice cases in two different states, was recently decided in Massachusetts.

Background

The plaintiffs in Gorbey v. American Journal of Obstetrics and Gynecology, 2012 U.S. Dist. LEXIS 36450 (D. Ma. 3/16/12), were two children, one born in Virginia (Andrew Gorbey) and other in Illinois (Keenan Stapleton). Both suffered permanent brachial plexus injuries at birth. A brachial plexus injury is one that occurs when the nerves running from the spine to the shoulder, arm and hand are stretched or torn. A child born with such an injury may suffer loss of sensation in those areas, or even complete paralysis of the arm. Over the years, a popular theory has formed that the injury most likely comes about when shoulder dystocia ' a condition in which the baby's shoulder gets caught on the mother's pubic symphysis ' occurs, and the delivering doctor exerts too much traction (pressure) on the baby in order to facilitate delivery.

Both plaintiffs, through their representatives, brought medical malpractice suits against their mothers' obstetricians, each alleging they suffered permanent brachial plexus injuries after the defendants exerted too much traction on them during birth. Each doctor disagreed with that theory. For example, in the Illinois case, the doctor contended that the baby's injury occurred due to the force of the mother's uterine contractions while the child's left shoulder was caught on a ridge of the sacral promontory area of his spine.

Both plaintiffs lost their medical malpractice cases.

The Article in Question

The defense in each of the two lawsuits had cross-examined medical experts using an article published in the American Journal of Obstetrics and Gynecology, titled “Permanent Brachial Plexus Injury Following Vaginal Delivery Without Physician Traction or Shoulder Dystocia,” written by doctors Henry Lerner and Eva Salamon. It described a case study of one of Dr. Salamon's deliveries, in which the baby suffered a brachial plexus injury even though the delivery did not involve shoulder dystocia or physician traction. The article stated that this instance was “the first unambiguous case report” to demonstrate that a brachial plexus injury could happen without shoulder dystocia or a doctor exerting too much traction.

In Keenan Stapleton's case, heard in an Illinois trial court, the plaintiff's obstetrics expert, Dr. Stuart Edelberg, was cross-examined concerning the Salamon/Lerner article. He discounted the article's application to the case at hand, and later testified that Dr. Lerner had served not only as co-author of the article, but also as a medical expert in Dr. Salamon's defense of a medical malpractice case that flowed from the same birth chronicled in the article. Other journal articles in the same vein were used in Dr. Edelberg's cross-examination as well, but he opined that these were inapposite because they focused primarily on cases involving temporary, rather than permanent, brachial plexus injuries.

The Appeals

After losing their malpractice cases at trial, both the Illinois and Virginia plaintiffs appealed. Keenan Stapleton's appeal, before the Appellate Court of Illinois, First District, Fifth Division, centered on the use of the Salamon/Lerner article in cross-examining his medical expert. Stapleton v. Moore , 403 Ill. App. 3d 147 (2010). The appellants objected to not having been informed that the article would be used in questioning their medical expert. The appeals court found no error in this because state law does not compel pre-trial disclosure of that which will be used to cross-examine opposing opinion witnesses. In addition, the majority was satisfied with the trial court's finding that the article's authors were reliable sources, although the reliability of the contents of the article was never established. And, finally, the court found that the use of the article on cross-examination was not prejudicial to the plaintiff as it was “but one of various articles and texts used to impeach plaintiff's expert.”

The dissent pointed up several flaws with the majority's stance, including its finding that the plaintiff was not harmed by the introduction of the Salamon/Lerner article, especially since that article was brought up again in defense counsel's closing arguments. “The majority suggests that plaintiff's arguments about this article are much ado about nothing, because defendants also utilized several other articles in cross-examination of plaintiff's expert,” noted the dissent. “This strikes me as a rather cynical suggestion, authorizing a party to slip in patently unreliable literature before the jury as long as one softens the blow with some reliable texts and articles. It is not hyperbole to suggest that the Lerner and Salamon article went to the very heart of the claim of malpractice in this case. It directly suggested that Erb's palsy could occur in the complete absence of any known shoulder dystocia, merely as a result of the normal propulsive forces of labor. It also merits mention that the article in question is a case report and not a peer-reviewed article. A fair reading of the work product of this defendant/expert tag team suggests that the missive was penned more to assist litigants than to inform medical professionals, and this view was borne out by the testimony in the matter sub judice. More to the point, if defendant already had three other reliable sources at hand, the use of the facially unreliable article not only highlights the cumulative nature of the proof, but also its inherent prejudicial effect.”

Trying a Different Tack

Having failed to recover on their underlying medical malpractice claims, both the Illinois and Virginia plaintiffs brought suit against the authors, Drs. Salamon and Lerner, and against the article's publisher. They alleged the article was inaccurate, and was false and misleading in accordance with the Massachusetts Consumer Protection Act, Massachusetts General Law c. 93A (Chapter 93A), in that it did not accurately report what happened during the delivery it chronicled. The plaintiffs averred that the hospital records for the birth discussed in the article contradicted the article's recounting of the case, and that in depositions related to the medical malpractice suit stemming from that birth, both authors testified to facts that differed from those put forth in the article. The plaintiffs also claimed that, soon after publication, the publisher learned of discrepancies between the article's version of the birth and reality, yet refused to retract the article or to issue a clarifying statement once the truth was known. Because the plaintiffs blamed the article for the loss of their med-mal cases, they sought damages of $3 million each (the amount they said they would have won if they had prevailed in their underlying suits), along with an order prohibiting the use of the article in any future litigation.

To make a showing under Massachusetts's Chapter 93A, a plaintiff must prove that there was: 1) a deceptive act or practice on the part of the defendant; 2) an injury or loss suffered by the plaintiff; and 3) a causal connection between the defendant's deceptive act or practice and the plaintiff's injury. Tyler v. Michaels Stores Inc., 2012 U.S. Dist. LEXIS 1569 (D. Mass. 1/6/12). At issue in Gorbey was the causation element, as the plaintiffs had adequately alleged a deceptive act and an injury to survive a motion to dismiss.

The court characterized the plaintiffs' causation arguments as: 1) in each of their cases, defendant experts had introduced and relied upon the allegedly false article; 2) generally, defendants in medical malpractice actions have relied upon and will continue to rely upon the article; 3) but for the introduction of the deceptive article the plaintiffs would have prevailed in their medical malpractice suits; and 4) therefore, each plaintiff suffered damaged of $3 million. Of these, only the first ' that the article was introduced and relied upon by the defendant health care providers ' could qualify as a “fact,” said the court, and “[t]hat fact does not support a reasonable inference of materiality but instead establishes a mere possibility of materiality. In the absence of any factual content concerning, inter alia, how the article was used, what testimony concerning the article was offered or what other evidence was admitted, the mere fact of the admission of the article into evidence is insufficient to render the complaint plausible on its face.”

The Gorbey appellants also asked the court for leave to amend their complaint to include a fraud claim, which would have required them to show that: 1) the defendants made a false representation of material fact; 2) for the purpose of inducing the plaintiffs to act on that representations; and 3) the plaintiffs reasonably relied on that representation to their detriment. The court refused to allow the amendment, finding that the persons who might have relied on any alleged falsities were the jury members, not the infant plaintiffs; as third parties, the Gorbey appellants had no standing to sue.

Therefore, the court dismissed suit.

Conclusion

What doomed the case against the journal article's authors and publisher? The court faulted the lack of evidence of direct causation, and it is hard to imagine that an adequate presentation ' one that would have satisfied the court ' would have been possible. Like most medical malpractice cases, the two underlying birth-injury claims required testimony and evidence from a number of sources: fact witnesses, expert witnesses, medical records and more. Any number of influences could have led to the medical defendants' success in those cases, so an attempt to prove that the journal article was the one tipping point in the defense's favor ' the requisite “cause” of the plaintiff's loss ' would likely have been futile.

Although the outcome in Gorbey is soundly based in the law, one can easily empathize with the frustration that caused the plaintiffs to bring the suit. Scientific journals of all kinds attempt to vet their articles to make sure that their reputations as authoritative publications are maintained. Most contributors to those journals are also concerned with their reputations for integrity, and are loathe to submit anything they cannot fully back up. But although the veracity of the Salamon/Lerner article may indeed be all that it should be, there are certainly documented instances of journal articles that were not based on sound science. Because medical journals are widely seen as authoritative (though certainly not infallible), the harm that deliberately false articles could cause is easy to imagine. Doctors might be persuaded to give patients useless treatments, or withhold helpful ones. Litigants with meritorious claims or defenses might see their cases lost due to the seed of doubt planted in jurors' minds by a dubious article. And although a litigant might be able to call on experts to counter the damage done by the introduction of a faulty scientific journal article, this may be impossible when at the last minute, and without notice ' as in Stapleton ' an article is sprung on an unsuspecting opinion witness during cross-examination.

Janice G. Inman is Editor-in-Chief of this newsletter.