Attack on Shoulder Dystocia Article Fails

An interesting decision from the First Circuit shot down the attempt of two unsuccessful plaintiffs to mount a collateral attack on the truthfulness of a medical journal article they claim unfairly damaged their malpractice cases.

The plaintiffs in A.G. v. Elsevier, Inc. had suffered adverse jury verdicts in cases involving the alleged mismanagement of shoulder dystocia, resulting in brachial plexus injuries to two children.  Both plaintiffs’ obstetric malpractice claims were tried to juries (in Virginia and Illinois), resulting in verdicts for the defendant doctors.  The plaintiffs then joined forces to file suit in Massachusetts federal district court against the American College of Obstetrics & Gynecology (ACOG) and Elsevier Publishing, as well as the journal article’s co-authors, Massachusetts obstetrician Henry Lerner M.D. and Eva Salamon M.D.—who was also the delivering obstetrician in the reported case.

According to the subsequent federal complaint, prominent among the evidence at each malpractice trial was an article entitled Permanent Brachial Plexus Injury Following Vaginal Delivery Without Physician Traction or Shoulder Dystocia, authored by Lerner and Salamon and published in the journal of the American College of Obstetrics & Gynecology (ACOG).  The defense in each case argued that this was evidence that there were other causes for brachial plexus injuries apart from obstetric negligence.

Unfortunately for Lerner, a vocal advocate for “tort reform,” lecturer on the defense of malpractice cases, and a frequent defense witness, his recitation of the facts—specifically the assumption that there was no shoulder dystocia and no traction used in the delivery—was apparently untrue.  For example, according to the First Circuit opinion, the plaintiffs claimed that Lerner never read the labor and delivery record—which contained some evidence of a shoulder dystocia—before writing the article.  Further, Salamon, the delivering obstetrician, admitted under oath that she applied traction in all deliveries–directly contradicting the article’s title.  This, the plaintiff patients’ lawyer embarked on a campaign to elicit a retraction of the article from the ACOG.  Not surprisingly, those efforts failed—the article having become quite useful in the defense of shoulder dystocia malpractice cases!

Finding that the claim that the alleged falsity of the article caused the adverse jury verdicts failed to reach the “plateau of plausibility under [Ashcroft v.] Iqbal and [Bell Atlantic Co. v.] Twombly,” the First Circuit affirmed the district court’s order dismissing the case.  While noting that, based on the factual allegations in the complaint, the plaintiffs had “more than a gambler’s chance of proving fraud,” the Court noted that there were no facts to support the conclusory statement in the complaint that the allegedly false article was the cause of the defense verdicts.  Thus, under the federal standards, which require a plaintiff to plead specific facts in support of his legal allegations, the complaint was properly dismissed.

The difficulty in proving the effect of this article on any given jury verdict is obvious–without the ability to obtain testimony from the jurors about their thought process, which is prohibited almost everywhere–claims like A.G.’s are bound to fail.  However, this does not mean that plaintiffs should simply accept without question medical articles like Lerner and Salamon’s and others of their ilk.  Plaintiffs’ lawyers need to fight aggressively against articles based on poor science or incomplete or misleading facts.

Read the First Circuit’s opinion in A.G. v. Elsevier, Inc. here.


Shoulder Dystocia and Erbs Palsy Injuries

One common type of obstetric malpractice case involves a delivery complication known as shoulder dystocia, in which one of the baby’s shoulder (usually the front or anterior shoulder) gets stuck behind the mother’s bone.  The common scenario is that the baby’s head delivers and then pulls back toward the mother’s body–the so-called “turtle sign.”  Shoulder dystocia is an obstetric emergency, because the baby is stuck and won’t deliver without special obstetric manuevers, but isn’t getting adequate oxygen because the umbilical cord is compressed by the baby’s body.  If the shoulder  dystocia is not resolved quickly, brain damage or even death can result.

But freeing the trapped shoulder has its own risks.  If the obstetrician pulls too hard on the baby’s head, injury to the brachial plexus nerves in the shoulder may result.  Also known as Erbs Palsy, this damage may heal over time, or, if the nerves are torn or avulsed, it may be permanent.  Depending on the extent and level of the damage, a child with Erbs Palsy may have little or no use of his wrist, arm and/or shoulder.

There are two ways to prevent Erbs Palsy: by delivering the baby by Cesarean section before the shoulder dystocia occurs, or by using obstetric techniques that free the shoulder without traumatizing the brachial plexus nerves.  Either a doctor’s failure to recognize the risk of shoulder dystocia or the failure to use the proper techniques may form the basis of a malpractice claim.

For years, doctors have attempted to defend these cases by claiming that shoulder dystocia is unpreventable and unpredictable.  More recently, obstetricians have created a body of literature to help in their defense, claiming that Erbs palsy injuries aren’t caused by traction, but are due to the forces of the uterus expelling the baby down the birth canal.  Both of these defenses are rebuttable with scientifically based medical literature.

While it’s impossible to “predict” in any given mother whether there will be a shoulder dystocia, there are a number of factors that can dramatically increase the risk, sometimes to the point where a Cesarean section is advisable.  These include pre-labor factors such as the mother’s height and weight, the baby’s estimated weight, maternal diabetes, and a history of prior shoulder dystocias.  There are also risk factors that arise during labor, such as an induction with Pitocin or a delivery that is either prolonged or precipitous (too long or too short).  One company claims to have created an algorithm that will enable doctors to assess the risk accurately so that it can be discussed with their patients.

Some “women’s rights” groups decry the notion of “prophylactic” Cesarean sections, done to prevent shoulder dystocia in high-risk situations.  Their members fill internet bulletin boards and chat rooms with diatribes about the “myth” of the big baby, and of obstetricians who perform unnecessary Cesareans, or “cause” shoulder dystocia by inducing labor.

Yet just like the obstetricians who exclude women from the decision-making process, these supposed patient advocates do expectant mothers a great disservice.  Since there is no way to predict exactly which high-risk mothers will have shoulder dystocia, each woman must make her own choice, after careful discussion with her health care providers.  Some women prefer to attempt a vaginal delivery, while others choose the operative route to avoid the risk of a child with a devastating injury.  And the calculus can change during labor if additional risk factors develop.  What seemed safe enough at the outset may become more dangerous with the passage of time.

It is also regrettable that the medical profession has chosen to devote so much time and money to creating defenses to shoulder dystocia cases, rather than to educating providers and counseling mothers so that they can work together to make the best choice for each individual.  Proper education, risk assessment and decision making would reduce both the number of injured babies and the number of malpractice claims.