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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Malpractice Lawsuit for Nerve Damage Sustained After Neck Cyst Excision

Earlier this month, a malpractice lawsuit resulted in a $4 million dollar award to the patient plaintiff who suffered permanent nerve damage after a family practice physician excised a cyst from the neck. [link]

Briefly, the patient visited the family physician in July 2009 for a lump in his left neck. The family physician recommended that the mass be surgically excised which was subsequently performed by the same family physician (not a surgeon) in the office. After the procedure, the patient experienced a weakened left arm and shoulder and had difficulty picking things up with that arm or moving the arm more than 90 degrees. Subsequent evaluation by an orthopedic surgeon and neurosurgeon determined that the spinal accessary nerve was cut at the time of the neck mass excision.

So what probably happened?

The spinal accessory nerve (also known as cranial nerve XI), is a major nerve that comes off the spinal cord and supplies motor function to the shoulder and arm (red arrow below pointing to the nerve which is yellow).

Image Modified from Wikipedia

I suspect that in this case, the mass was located in the same area denoted by the red arrow above. Now assuming that media and court documents were correct that it was truly a cyst that was excised, the cyst must have laid right below the skin, but on top of the nerve.

Careless excision of the cyst would have resulted in this nerve being cut especially during dissection on the mass's deepest aspect, especially if the physician did not hug the mass during dissection. Using an analogy, good surgical technique is like peeling an orange without puncturing the yummy orange underneath. Poor surgical technique would be peeling the rind and taking bits of the edible orange as well... or leaving some nasty rind on the fleshy orange itself.

Often, novice surgeons take large cuts around a mass with the tip of the scissor or scalpel extending beyond visualization. Also, thick layers of tissues are cut rather than thin transparent amounts. Furthermore, when a mass is grasped and pulled, anatomic structures like a nerve can get pulled out of its usual location along with the mass which can lead to unintentional damage. 

As such, experienced surgeons know when to cut big (no important structures are around) and when to cut in tiny microscopic degrees (important nerves and blood vessels are around).

The neck has a large number of important blood vessels and nerves in a highly compacted area making surgery in this part of the body potentially fraught with peril. However, there are certain "safe" areas where no significant important nerves or blood vessels are found. Such a "safe" zone from a nerve perspective is right under the chin extending down over the voicebox. Of course, there are other important structures located in this area that could get damaged even if nerves aren't a concern.

Source:
Montco jury awards Hatboro man $4M for nerve damage. Phillyburbs 8/27/13

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Strong Sneeze Broke Woman's Neck

Fox News reported yesterday about an Australian woman, Monique Jeffrey, who sneezed SO hard that she broke her neck... literally.

According to the neurosurgeon the patient eventually saw, her C1 and C2 vertebrae had dislocated and were displaced which resulted in her symptoms of excruciating pain with her head locked to her right shoulder and in too much pain to move anything but her right arm. Her left arm was also numb with tingling.

She was placed in a halo traction for three months with weights to gradually move the vertebrae back in alignment.

Source:
Super-strong sneeze puts mom in traction for three months. Fox News 3/27/12

Melbourne mum dislocates neck by sneezing. 9 News Melbourne. 3/27/12

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