Suing a Medical Journal for Lost Medical Malpractice Cases: 1st Circuit Says No


By: Michael Eshman
In what the court called an “imaginative but unpersuasive” theory of liability, the 1st Circuit U.S. Court of Appeals rejected a claim brought by unsuccessful medical malpractice plaintiffs against the authors, authors’ employer, and publisher of an allegedly fraudulent case report.  The case report at issue was Permanent Brachial Plexus Injury Following Vaginal Delivery Without Physician Traction or Shoulder Dystocia, which appeared in the March 2008 issue of the American Journal of Obstetrics and Gynecology.  The plaintiffs claimed that the juries’ reliance on the case report in their medical malpractice cases crippled their allegations of brachial plexus injuries caused by excessive physician traction during delivery.  The court rejected the claim on a plausibility inquiry, finding that even if the report had been fraudulent, the plaintiffs could not plausibly prove that the report caused their losses because they could not prove that the case report was critical to the juries’ verdicts.  While acknowledging that these allegations taken together indicated that the plaintiffs had more than a gambler’s chance of proving fraud, the court ultimately did not address the report itself or the medicine behind the report.  The court noted that the Daubert doctrine for the admissibility of scientific and technical evidence presents the appropriate opportunity to raise concerns about the case report.
The case is A.G. and K.S. v. Elsevier, Inc., et. al., 2013 WL5630077 (1st Cir. October 16, 2013).