Kenneth Levine of Kenneth Levine and Associates of Brookline, Massachusetts has filed a fascinating lawsuit against the authors of an article on brachial plexus injuries and the publication that printed the article.
Levine alleges that the article, "Permanent Brachial Plexus Injury Following Vaginal Delivery Without Physician Traction or Shoulder Dystocia ", was published in 2008 in the American Journal of Obstetrics and Gynecology, and is being used by defense experts to defeat brachial plexus injury claims. The article claims to report the "first unambiguous case of a baby born vaginally without physician traction, and even without the occurrence of shoulder dystocia, that resulted in a permanent brachial plexus injury."
Attorney Levine alleges that the case report of the delivery contains false information and the individual defendants knew the data was false when it was published. The Complaint states that the corporate defendant The American Journal of Obstetrics and Gynecology were later made aware of the falsities and have refused to retract the article.
As reported in Day on Torts, a medical malpractice claim arose out of the original delivery and the defendant doctor (a co-author) is said to have admitted in her deposition in that case that she had in fact used downward traction in delivering the trial. In addition, the labor and delivery notes indicate the presence of shoulder dsytocia.
The other co-author of the case report was Dr. Henry Lerner. He is alleged to have later admitted (during expert testimony in a different case in Illinois) to not reading the labor and delivery notes in the case before co-authoring the case report.
This is a fascinating case and an aggressive strategy to defeat what has the risk of being labeled as "science." The problem, of course, is that one case report will, sooner or later, get picked up by some other author and over time walls against liability are built that are difficult to overcome. Even legitimate experts - on either side - who are unaware of the truth behind an article will be forced to admit (or rely upon) this type of literature to support their position. Mr. Levine, who has a nationwide practice in such cases, is bound and determined to stop what he believes to be junk science from interfering with the quest to find truth in the courtrooms in brachial plexus cases.
The case is Gorbey v. American Journal of Obstetrics & Gynecology, No. 1:11-CV- 11259-NMG. It is pending in the U. S. District Court for the District of Massachusetts.
I will keep you advised as this case develops.
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