Don't Like a Research Paper? Sue the Journal and Authors...

What is a lawyer to do if medical research produces results that make it more difficult to win lawsuits? Why you sue the medical journal and the researchers who authored it.

And you ask the medical journal to retract it.

And than you ask for a court order forbidding the report to be entered as evidence in future litigation.

Sound like a joke?

Wish it was, except it happened... is happening...

A Boston lawyer has sued the American Journal of Obstetrics and Gynecology for a case report published in 2008 regarding an infant delivery in which a brachial plexus injury was sustained via natural forces of labor without any excessive traction provided by the physician.

More info can be found on the lawsuit here which was initially dismissed by a trial court, but is on appeal to the First Circuit.

Given I'm an ENT, I can't necessarily state whether this published medical report has merit or not, but typically if a study is without merit, one criticizes it by publishing additional research studies to either support or refute it.

If lawyers now start influencing what can be published or not, or indirectly influence researchers whether to publish "unpopular" results for fear of lawsuits, it will have a chilling effect on the advancement of science and medical research.

Hopefully, suing medical journals and researchers will not become a popular trend.


Sources:
Publish an article that undermines lawsuits? See you in court. Overlawyered 9/18/13

Maternal forces causing injury. United Brachial Plexus Network 5/16/11

Permanent brachial plexus injury following vaginal delivery without physician traction or shoulder dystocia. American Journal of Obstetrics & Gynecology. Volume 198, Issue 3 , Pages e7-e8, March 2008

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ER Doc Found Negligent in Bell's Palsy Case

This case is not quite what you might think...

Here's the background... The Wisconsin State Supreme Court  found an ER physician negligent for failing to offer a carotid ultrasound for a patient who presented with an isolated facial paralysis (patient did not exhibit paralysis anywhere else in the body) and upheld a $2 million jury award to the patient in 2008. Not only that, the Wisconsin Medical Board reprimanded the ER physician and fined her $300. [link]

Hmmmm... After all, it is not considered routine nor standard of care to obtain a carotid ultrasound for an isolated facial paralysis known as Bell's palsy. I should also mention that the ER physician was NOT found negligent in the diagnosis of Bell's palsy.

Well, here's the other part of the story... The patient did have a CT scan of the brain in the ER which was normal. A diagnosis of Bell's palsy was appropriately made by the ER physician and the patient sent home. Eleven days later, the patient suffered a stroke with irreversible damage. A stroke workup at that time revealed a carotid artery with 95% obstruction.

For those uninitiated, paralysis due to a blocked carotid artery would cause lack of blood flow to one entire half of the brain resulting in not only facial paralysis, but also paralysis of half the body too. Furthermore, a stroke causing facial paralysis would have forehead sparing (more on this).

The court's feeling was that the patient should have been offered a carotid ultrasound at the time of the initial ER visit for Bell's palsy... in essence, the court was stating a stroke workup should have been offered/done for a Bell's Palsy. I should also mention that most ER's do not have carotid ultrasound capabilities outside of business hours.

To reiterate, a carotid ultrasound is NOT a test that a physician would or should normally order for a Bell's Palsy workup. By the court stating a carotid ultrasound should have been performed, it has turned a medical condition of Bell's palsy which is not a stroke concern into a diagnosis of possible stroke.

Does that now mean that whenever a patient presents with a Bell's palsy, a stroke protocol should also be pursued which would include:

1) Stroke rapid response by the ER
2) Hospital admission
3) Stroke workup which would include:
  • Carotid ultrasound
  • MRI Head
  • Cardiac workup for arrhythmias (atrial fibrillation which can cause embolic stroke)
  • Pulmonary and vascular workup for deep venous thrombosis (can also cause embolic stroke)
etc, etc, etc

Medically speaking, Bell's palsy is NOT a stroke nor a concern for possible stroke nor increased risk of stroke. Bell's palsy is an isolated inflammation of the facial nerve that has nothing to do with the brain.

ER physicians have a hard enough job as it is now, but to be responsible for pursuing workups for totally unrelated diagnosis separate from the main presenting concern should be cause for concern.

Perhaps there is more to this case that was absent from what has been reported in the media...

Source:
State board reprimands doctor who was found negligent by high court. Wisconsin State Journal 3/21/13

Health Sense: How much should doctor tell you? Wisconsin State Journal 7/9/12

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What do Earthquakes Have to do with Thyroid Masses?

I'm not sure what is going on within the Italian Court system, but in October 2012, the Italian Court convicted 7 scientists to jail terms for not accurately predicting the 2009 L'Aquila earthquake that ended up killing over 300 people.

Also in October 2012, the Italian Supreme Court ruled that cell phones caused one man's brain tumor.

Since when does the Court decide on matters of scientific validity?

And even more importantly, what does this have to do with ENT???

I'm sure people here and there will shake their heads and say how ridiculous. "Unbelievable" that the Italians Courts have made such a stupid decision.

I hate to break it to you all... but it happens ALL THE TIME, especially in the field of medicine. The Court and Lawyers have profoundly influenced how medicine (and now seismology) is practiced whether scientifically valid or not. No matter how ridiculous it may be seen in hindsight or not.

Let's go back to those poor convicted earthquake scientists...

At least in Italy, it's likely that these Court decisions will having a chilling influence over how scientists will behave in the future whether scientifically valid or not. For every single minor tremor, scientists will now have to weigh potential for jail-term if they are inaccurate with their predictions (even though everybody knows predicting major earthquakes accurately is impossible).

I can imagine them to report in the future every single minor tremor as a potential threat of a major earthquake and as such, citizens of Italy are warned to take precautions and evacuate the area for 1 month.

I wonder how Californians will react to such predictions.

In medicine, especially in the field of radiology and pathology, diagnostic dilemmas equivalent to what Italian seismologists go through are common. For fear of the Court and Lawyers, radiologists and pathologists commonly overcall grey areas leading to further testing and even surgery for ultimately reasons that were totally unnecessary.

For example, thyroid masses are one particularly thorny area for both radiologists and pathologists.

In radiology, they will report every single nodule and cyst no matter how small for fear of Court and Lawyers. In the huge majority of the time, such thyroid masses are benign and no intervention is needed. However, should one of those nodules/cysts actually end up being thyroid cancer, the radiologist may end up being sued if he did NOT report them. As such, they are all reported and the burden of lawsuit than falls upon the doctor who ordered the CT scan or ultrasound in the first place.

What does this mean for the patient? For fear of Court and Lawyers, patients will end up getting more tests done and even undergo surgical removal "just to make sure" that it is not cancerous.

Which leads to the next diagnostic dilemma...

In pathology, fine needle biopsies of such thyroid masses is common. However, making a pathological diagnosis is sometimes quite difficult, especially if cancer is on everybody's mind. So what is the pathologist to do if he is uncertain whether cancer is present or not? For fear of Court and Lawyers, he makes an ambiguous statement:

There are some atypic cells suggestive but not definitive of cancer. Clinical correlation recommended.

Now the legal burden is on the surgeon. The surgeon, for fear of Court and Lawyers, will now suggest to the patient that to be absolutely sure there is no cancer present, it is perhaps best to remove the thyroid gland.

Low and behold, many patients who undergo thyroid removal for such ambiguous findings on radiology and pathology reports end up with no cancer found in the thyroid gland. All that testing and surgery was, in the end, totally unnecessary.

The judgements of four physicians have been consecutively affected and compounded with each other for fear of Court and Lawyers:

• Primary Care Doctor who ordered the CT scan or Ultrasound of the thyroid gland
• Radiologist who reported the thyroid nodules/cysts
• Pathologist who interpreted the needle biopsies of those nodules/cysts
• Surgeon who ends up removing the thyroid gland based on the pathology and radiology results

Does this actually happen???

Absolutely. All the time.

In fact, it happened to the President of Argentina who had her entire thyroid gland removed for fear of cancer, but ended up that no cancer was found. Read more.

Read more about the surgery here or watch the video!

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Cell Phones Caused Brain Tumor Rules Supreme Court

On October 12, 2012, the Italian Supreme Court ruled that cell phones caused one man's brain tumor. The Court felt that there was a causal link between businessman Innocente Marcolini's brain tumor diagnosis and his phone use which he used up to 6 hours per day for over a decade. Although the brain tumor was a benign trigeminal neuroma, it required surgery and badly affected his quality of life.

This "causal link" between cell phones and brain tumors has been described in a previous blog post.

Though definitive scientific proof that links cell phones with brain tumors (benign or cancerous) is still under debate, apparently this court ruling has set a precedent for possible future lawsuits whether there is a true scientific basis present or not.

Indeed, this court ruling should NOT be confused as conclusive scientific evidence which is still lacking.

However, I forsee that this court ruling will be used in place of scientific evidence.

This association has also been claimed by singer Sheryl Crow who has a brain meningioma.

I'm not sure what is going on within the Italian Court system, but they also recently convicted 7 scientists to jail terms for not accurately predicting the 2009 L'Aquila earthquake. Since when does the Court decide on matters of scientific validity?

Source:
Cell Phones Caused Man's Brain Tumor, Italian Supreme Court Rules. Medical Daily 10/19/12.

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