brachial plexus article challenged in federal court

Medical Journal Accused of Tilting Malpractice Verdict

By Sheri Qualters Contact All Articles 

The National Law Journal

September 12, 2013

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 inA.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.

"Disclosure, Apology and Offer" and You

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INTRODUCTION

            In August of this year, Massachusetts governor Deval Patrick signed into law a bill designed to control the state’s healthcare costs.  Among its provisions is the so called “DA&O” or “Disclosure, Apology and Offer” mechanism—based off of a similar program instituted in the University of Michigan Health System ten years ago, and piloted earlier this year in several Massachusetts hospitals in a program funded at least in part by several insurers—that stands to radically change how instances of medical malpractice are prosecuted here in Massachusetts [1, 2].

            While under the current system someone who has been harmed by medical malpractice ornegligence could, theoretically, and provided they had a meritorious case, file a lawsuit at any time within the statute of limitations, DA&O institutes a mandatory six-month “cooling-off” period during which no lawsuit can be brought against the medical provider [2].  During this cooling-off period, aimed at securing a resolution to the matter without resort to litigation, the provider would undertake a “‘root cause analysis’ to determine if caregivers or hospital policy or systems were at fault.  If they were, caregivers will apologize, and the hospital will work with hospital and physician malpractice insurers to determine the amount of compensation to offer the patient for injuries and follow-up care,” [2].  

IMPLICATIONS

            While some laud the new law on the basis that it would provide closure to patients and families in the form of an apology from the offending physician or institution and, if settlement is reached, could potentially expedite compensation to patients, it entails a number of drawbacks.

·      Compensation awarded at a mere three to six months out from an injury due to physician error may not be adequate for the full range of medical expenses the individual may incur over his or her lifetime; [1]

·      While the “root cause analysis” could be used for litigation purposes if a settlement is not reached during the cool-down period, the crucial physician apology would be inadmissible; [3]

·      As yet, the new law “[carries] no penalties if ignored,” [4] and physicians, fearing a blemish on their record, may resist the opportunity to settle; [1]

·      Some fear the law may “too liberally assume that the bulk of malpractice suits are without merit,” when the state already has a mechanism in place for weeding out frivolous suits—the Medical Malpractice Tribunal; [3]

·      Finally, in the experience of veteran trial attorneys like Kenneth M. Levine, who has tried malpractice cases in a number of states across the country where similar laws are in effect, “the six-month waiting period ‘just gives physicians more time to work with their insurance companies and prepare their defenses… they haven’t found a great increase in settlements and they haven’t had an increase in discussions [4].

            If you have been injured as a result of physician malpractice, you need an experienced attorney to fight for your rights to fair and adequate compensation.

            Call Kenneth M. Levine and Associates today.

Kenneth M. Levine & Associates, LLC

32 Kent Street

Brookline Village, MA 02445

617-566-2700

klevine@klevinelaw.com

[1] http://protectpatientsnow.org/content/massachusetts-hospitals-undertake-new-approach-malpractice-cases

[2] http://www.boston.com/news/local/massachusetts/articles/2012/04/18/mass_hospitals_promise_openness_apologies/

[3] http://www.patriotledger.com/topstories/x643675261/Optimism-caution-from-local-hospitals-attorneys-on-proposed-medical-malpractice-reforms

[4] http://www.masslive.com/business-news/index.ssf/2012/08/medical_malpractices_reforms_in_massachu.html

Birth Injury

According to a recent news article, out of every 1,000 babies born in the U.S., six suffer a birth injury. Some of these birth injuries are minor and heal soon after birth, but some are so severe that they affect the child and the child's parents for the rest of their lives.

An example of a serious injury that may heal after continued physical therapy and surgery are shoulder injuries. Sometimes, these shoulder and arm injuries will cause permanent disabilities. A child can suffer Erb's palsy if they experience shoulder dystocia during birth.

Shoulder dystocia occurs when the baby's shoulder gets stuck behind the mother's pelvic bone during birth. If the doctor pulls down on the baby's neck and head to try to release the baby too quickly from the birth canal, it can cause an injury to the nerves in the baby's shoulder and arms.

Another severe injury is cerebral palsy, which can occur if the baby's oxygen supply is cut off during birth and the brain is deprived of oxygen for too long. The symptoms of cerebral palsy can vary, but in the most severe cases, a child may need round-the-clock care for the rest of their life.

Sometimes birth injuries cannot be prevented, but other times they are caused by doctor's mistakes and negligence, or medical malpractice.

If your child has suffered a brachial plexus injury or cerebral palsy you need an experienced attorney to hold the doctors and hospitals accountable for their mistakes.

Kenneth Levine & Associates,  LLC. 32 Kent Street Brookline, Massachusetts  02445 617-566-2700
www.Klevinelaw.com   

How Doctors Defend Against Erb’s Palsy Cases

If your child suffers from Erb’s Palsy, it may seem clear to you that the delivering doctor committed medical malpractice. After all, the shoulder was impeded or stuck behind the pubic bone (known as shoulder dystocia) at the time of delivery, the doctor had his or her hands on the baby, and an injury was apparent to the shoulder and arm—and no other part of the anatomy— immediately after birth.

The attorneys here at Kenneth M. Levine & Associates agree that cases of Erb’s Palsy, or permanent injury to the brachial plexus nerves, are the result of medical malpractice.

Routinely, however, medical malpractice defense attorneys representing doctors and hospitals in Erb’s Palsy cases utilize a stock defense against cases brought on behalf of injured children.

Here’s what they rely on:

The American College of Obstetricians and Gynecologists (ACOG) issued a practice bulletin in 2002 that offers the opinion that approximately 50% of Erb’s Palsy cases occur in the presence of shoulder dystocia and 50% occur without it. Relying upon this source of information, defense attorneys and their experts will claim that the injury occurred naturally as part of the birth, and therefore, the doctor and hospital personnel were not negligent.

At Kenneth M. Levine & Associates, we believe that there are many flaws in this analysis, not to mention that ACOG is a trade group with a bias against medical malpractice cases, and we have convinced juries of this.

It takes an attorney who is knowledgeable about the medical literature regarding Erb’s Palsy to successfully counter the arguments advanced by the defense at trial, or otherwise even the most experienced trial attorney may find him or herself caught by surprise.

Further, depending upon where the birth occurred, the courts of each state have different rules that affect how parties may introduce medical literature and cross-examine experts about it.

The attorneys at Kenneth M. Levine & Associates have an in-depth knowledge about Erb’s Palsy from having litigated numerous cases, enabling us to provide you with the highest level of legal representation.

www.Klevinelaw.com 

My child has a brachial plexus injury and is only a few months old....what should i do ?

Brachial plexus injuries have a wide spectrum of nerve impairment. Fortunately most begin anti-gravity recovery of shoulder, elbow, wrist and hand function in the first few months of life. If that is the case with your child (he or she can lift their hand towards their mouth in a sitting position; open his or her fingers wide, lift their arm to the shoulder level), then recovery will probably be full. However, if your child has no or minimal signs of recovery in the first three months of life, you should work with your primary care physician to (1) participate in a therapy program to maintain full range of motion of all joints (2) seek consultation regarding indications for nerve surgery. Republished from the United Brachial Plexus Network website  (UBPN thanks Dr. Peter Waters for contributing this answer)

The attorneys at Kenneth Levine & Associates have an in-depth knowledge about Erb’s Palsy/Brachial Plexus injuries from having litigated numerous cases, enabling us to provide you with the highest level of legal representation. 

Ken Levine

Kenneth Levine & Associates,  LLC.
370 Washington Street
Brookline, Massachusetts  02445
617-566-2700
617-566-6144 (fax)Klevine@Klevinelaw.com
www.Klevinelaw.com  

How Doctors Defend Against Erb’s Palsy Cases

If your child suffers from Erb’s Palsy, it may seem clear to you that the delivering doctor committed medical malpractice. After all, the shoulder was impeded or stuck behind the pubic bone (known as shoulder dystocia) at the time of delivery, the doctor had his or her hands on the baby, and an injury was apparent to the shoulder and arm—and no other part of the anatomy— immediately after birth. I agree that cases of Erb’s Palsy, or permanent injury to the brachial plexus nerves, are the result of medical malpractice. 

Routinely, however, medical malpractice defense attorneys representing doctors and hospitals in Erb’s Palsy cases utilize a stock defense against cases brought on behalf of injured children.

Here’s what they rely on: 

The American College of Obstetricians and Gynecologists (ACOG) issued a practice bulletin in 2002 that offers the opinion that approximately 50% of Erb’s Palsy cases occur in the presence of shoulder dystocia and 50% occur without it. Relying upon this source of information, defense attorneys and their experts will claim that the injury occurred naturally as part of the birth, and therefore, the doctor and hospital personnel were not negligent. 

At Kenneth Levine & Associates , we believe that there are many flaws in this analysis, not to mention that ACOG is a trade group with a bias against medical malpractice cases, and we have convinced juries of this. 

It takes an attorney who is knowledgeable about the medical literature regarding Erb’s Palsy to successfully counter the arguments advanced by the defense at trial, or otherwise even the most experienced trial attorney may find him or herself caught by surprise. 

Further, depending upon where the birth occurred , the courts of each state have different rules that affect how parties may introduce medical literature and cross-examine experts about it. 

The attorneys at Kenneth Levine & Associates have an in-depth knowledge about Erb’s Palsy from having litigated numerous cases, enabling us to provide you with the highest level of legal representation. 

Ken Levine

Kenneth Levine & Associates,  LLC.
370 Washington Street
Brookline, Massachusetts  02445
617-566-2700
617-566-6144 (fax)
Klevine@Klevinelaw.com
www.Klevinelaw.com  

Cerebral Palsy Risk Factors

Cerebral Palsy Risk Factors

 Cerebral palsy is a disability that a person is typically born with or can develop in the early years of life. There are several risk factors associated with cerebral palsy. In order to understand the risk factors linked to cerebral palsy it’s important to understand the difference between a risk factor and cause of cerebral palsy.
A risk factor is a variable which, when present, can increase the chances that something will happen. A risk factor for cerebral palsy is not the cause of cerebral palsy. It is simply a variable that can increase your child’s chances of developing this life altering disability. If a risk factor for cerebral palsy is present in a child, the parents and health care professionals caring for the child should be on close watch of how the infant develops.

Cerebral palsy risk factors can be associated with both the parents and the child. Some risk factors linked to the parents that can raise the risk of cerebral palsy developing are:

• If the mother is 40 years or older
• If the mother is 20 years or younger
• If the father is 20 years or younger
• If the child is of African-American ethnicity Some cerebral palsy risk factors related to the child that can increase the risk of the disability are: 

• If it is the first child or a child born fifth or later in the family
• If the child is one of a pair of twins, particularly if one of the twins dies in childbirth
• If the child is at a low birth weight (less than 3.5 pounds)
• If the child is premature (less than 37 weeks)

 Some other known risks factors associated with cerebral palsy are:

• Rh or ABO blood type incompatibility between the mother and the child
• Id the mother has German measles or another virus in the early stages of pregnancy
• If the infant is attacked by a micro-organism on the central nervous system

 It’s important to keep in mind that a child can have more than one risk factor at the same time. For instance, if he or she is born underweight and is also a twin.

  If you have any questions about a baby who has been diagnosed with cerebral palsy please contact me directly as you may have been the victim of medical negligence.

Ken Levine

Kenneth Levine & Associates,  LLC.
370 Washington Street
Brookline, Massachusetts  02445
617-566-2700
617-566-6144 (fax)
Klevine@Klevinelaw.com
www.Klevinelaw.com   

Klevine@Klevinelaw.comwww.Klevinelaw.com