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

Brachial Plexus Injury or Erb’s Palsy Medical Malpractice Risk Factors

Brachial Plexus Injury or Erb’s Palsy Medical Malpractice Risk Factors

The United Brachial Plexus Network, Inc (UPBN) recently announced the annual Brachial Plexus Injury Awareness Week (October 19 thru 26). The purpose of Brachial Plexus Injury Awareness is to promote public awareness of brachial plexus injury, sometimes called erb's palsy, to infants during childbirth. For those of you unfamiliar with brachial plexus injuries, they are injuries to nerves that affect the hand, shoulder, and/or elbow often leaving one or both arms with some degree of paralysis.

To promote awareness of the injury, below please find several risk factors for erbs palsy.

If you are an expecting Mom or your child has erbs palsy please read this, erbs palsy can most likely be prevented if you and/or your doctor are aware of the risk factors.

Erb’s Palsy is caused by a number of factors throughout the pregnancy, labor and/or delivery. During the prenatal period risk factors may be present that should indicate to your doctor that a cesarean section (C-section) is necessary due to the risk of shoulder dystocia (the child’s shoulder getting stuck on the mothers pubic bone). These risk factors include but are not limited to: history of gestational diabetes, maternal weight gain of 35 pounds or more, prior shoulder dystocia, birth weight over 8 lbs. 14 oz., unusually formed pelvis and/or short or small stature of the mother.

Additionally a prolonged second stage of labor may indicate the need for a c-section even if none of the risk factors above were present.

Finally, erb’s palsy may be a result of you doctor not properly handling shoulder dystocia during delivery. Here, there may have been no indications of the risk of your child experiencing shoulder dystocia, however, once encountered the doctor may not have performed the necessary procedures. These procedures often include but are not limited to an episiotomy followed by the McRoberts maneuver, Woods maneuver and/or suprapubic pressure.

Please feel to call or e-mail me if you have any questions regarding your childs injury.

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

Birth Complications

Birth Complications

Approximately 30 % of children born in the United States are born via c-section.  The reasons include:

Previous c-section

Large gestational age (LGA) child – large children risk getting stuck in the birth canal a condition known as shoulder dystocia which can lead to erbs palsy and/or a lack of oxygen and  cerebral palsy

Breech Birth or Transverse position – Abnormal position of the child

Umbilical cord prolapse - abnormal position of the umbilical cord increases the risk of lack of oxygen to the fetus by flattening the cord when vaginal delivery is attempted and can lead to cerebral palsy

Placental problems- placental abruption placenta previa

Prolonged labor – labor slows or stops

Fetal distress- child’s heart rate demonstrates signs of distress such as a slow heart rate on the fetal monitoring strips. This can be a sign that the child is not receiving sufficient oxygen to his/her brain and can lead to brain damage

Maternal infections – genital herpes or HIV

High Blood Pressure or Diabetes

Many medical malpractice lawsuits  are based on the theory that the doctors failed to recognize the conditions mentioned above or recognized the condition but failed to perform a c-section soon enough to avoid injuries like cerebral palsy and Erbs Palsy

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   

Shoulder Dystocia and Brachial Plexus Injury

Shoulder Dystocia is a dangerous situation for the child during birth. Shoulder dystocia can lead to permanent brachial plexus injury.

Shoulder dystocia occurs when the child’s shoulder gets such on the mother’s pubic bone. In most instances the child cannot be delivered without first dislodging the shoulder.

If this is not done properly the child may sustain an injury to a set of nerves called the brachial plexus. Injuries to the brachial plexus are often referred to as Erb’s Palsy. Children with Erb’s Palsy have limited dexterity in one or both arms.

In addition to injuring the child’s nerves, shoulder dystocia can also deprive the child of oxygen. Deprivation of oxygen to a child during birth can lead to the child sustaining brain damage and cerebral palsy.

If shoulder dystocia was encountered during your delivery and your child sustained an injury it is highly likely that medical malpractice played a role in your child’s injury.

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 and Infection: Birth Injury Lawyer Obtains $29 Million

November 9, 2011

Cerebral Palsy and Infection: Birth Injury Lawyer Obtains $29 Million

Last month a jury returned a verdict of $29 million in a medical malpractice lawsuitinvolving a child with cerebral palsy.

The lawsuit alleged that doctors at Northwestern Memorial Hospital in Chicago, Illinois failed to treat an infection in the mother prior to her delivery. This untreated infection caused brain damage to the child resulting in cerebral palsy.

If you or your child developed an infection that you think may have caused your child's cerebral palsy please give us a call for a free consultation to discuss your options.

Here is a list of some infections that can lead to cerebral palsy (note: this is just a short list many other infections can lead to cerebral palsy that are not on this list):

Infections in the mother during pregnancy:
Rubella (German measles)
Toxoplasmosis
Urinary Tract Infection (UTI)/Kidney Infection
Chickenpox (varicella).
Cytomegalovirus.
Syphilis

Infections in the child after birth:
Meningitis
Viral encephalitis.

posted by:

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   

More Birth Complications During the Night

More Birth Complications During the Night

A recent study of more than 700,000 births found that infant deaths and admission to the neonatal intensive care units were 32 to 47 percent higher during night time deliveries.

These numbers were in line with all admissions in to the intensive care units leading researches to the conclusion that the cause may be that staff fatigue or experience level may be a factor.

posted by

   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   

Ken Levine sues doctors and the Journal of Obstetrics and Gynecology alleging that a medical article concerning brachial plexus injury is knowingly false

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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