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Med Mal News

By ALM Staff | Law Journal Newsletters |
October 30, 2013

Is There Such a Thing As 'Publishing Malpractice'?

The U.S. Court of Appeals for the First Circuit is weighing whether a trial court erred in dismissing suits brought by two infants who suffered birth injuries; the children's suits in this instance were not against their medical care providers, but against the authors of a journal article. The defendants in the infants' underlying med mal cases relied on the article in question, published by Elsevier Inc., for their proposition that birth injuries to the brachial plexus can occur even without doctor-applied traction and without the baby's shoulder being stuck inside the birth canal for too long. They were able to get the suit summarily dismissed. Now, these plaintiffs contend that they can disprove the article's theories, and that the authors and/or publisher knew that its conclusions were false. Their suit claims that “writing, submitting for publication, publishing, and failing to retract an article stating false medical conclusions” is a type of unfair or deceptive practice under Massachusetts state law.

'

“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, MA, told the court on Sept. 11 in A.G. v. Elsevier Inc. The publisher counters that applying the state consumer protection law against it would deprive it of its First Amendment rights under the Constitution. The authors make a similar claim, and also assert that the outcome of the underlying medical malpractice suit would have been the same whether or not their article was considered.'

Is There Such a Thing As 'Publishing Malpractice'?

The U.S. Court of Appeals for the First Circuit is weighing whether a trial court erred in dismissing suits brought by two infants who suffered birth injuries; the children's suits in this instance were not against their medical care providers, but against the authors of a journal article. The defendants in the infants' underlying med mal cases relied on the article in question, published by Elsevier Inc., for their proposition that birth injuries to the brachial plexus can occur even without doctor-applied traction and without the baby's shoulder being stuck inside the birth canal for too long. They were able to get the suit summarily dismissed. Now, these plaintiffs contend that they can disprove the article's theories, and that the authors and/or publisher knew that its conclusions were false. Their suit claims that “writing, submitting for publication, publishing, and failing to retract an article stating false medical conclusions” is a type of unfair or deceptive practice under Massachusetts state law.

'

“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, MA, told the court on Sept. 11 in A.G. v. Elsevier Inc . The publisher counters that applying the state consumer protection law against it would deprive it of its First Amendment rights under the Constitution. The authors make a similar claim, and also assert that the outcome of the underlying medical malpractice suit would have been the same whether or not their article was considered.'

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