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Suit targeting medical article falls short

MA federal appeals court has rejected an effort by birth injury victims to discredit a medical article blamed for weakening their medical malpractice cases.

The U.S. Court of Appeals for the First Circuit last week affirmed the dismissal of a lawsuit challenging the reliability of a medical journal case report concerning complications in the delivery room.

Patients’ lawyers contended the case report was based on shaky facts and was unfairly used to undermine claims by children who suffered from so-called “brachial plexus” damage. One of the victims was a child whose lawsuit ended in defeat in Fredericksburg Circuit Court in 2011.

The three-judge appeals court panel decided the case against the article foundered on the plausibility standard for pleading in federal court.

The plaintiffs contended that – but for the case report – they would have prevailed at trial. They argued they should be allowed to investigate that claim.

“This contention elevates hope over reason,” wrote Judge Bruce M. Selya for the panel. He said the Daubert doctrine, making judges gatekeepers against flawed science, provides an appropriate pre-trial opportunity to raise concerns about the case report.

The 2008 case report, “Permanent Brachial Plexus Injury Following Vaginal Delivery Without Physician Traction or Shoulder Dystocia,” was published in the American Journal of Obstetrics & Gynecology.

The article purports to document a case of brachial plexus injury occurring in a delivery unaccompanied by either shoulder impingement or physician-applied traction. Plaintiffs’ lawyers say they uncovered facts which cast doubt on the validity of the report.

The case report bolsters claims by physicians, their lawyers and their insurers that brachial plexus injury can occur even if everyone in the delivery room does everything right.

Damage to the brachial plexus nerves can cause permanent impairment from a loss of sensation to total paralysis of an arm.

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