Retraction of published articles & litigation

Might the author of an allegedly inaccurate scientific article be sued for damages, for the consequential loss of a claim for medical negligence?

The Retraction Watch website in early January referred to novel litigation of that type in the Federal Appeals Court., United States: AG & Ors v Elsevier Inc & Anor.

The plaintiffs in the litigation, having failed in previous medical negligence claims (brachial plexus injury), sought damages from the authors and publisher of a case report which had been relied upon by the defendants. The article had previously appeared in a peer reviewed journal, the American Journal of Obstetrics & Gynecology. It was written by Dr. Henry Lerner and Dr. Eva Salamon – “Permanent Brachial Plexus Injury Following Vaginal Delivery Without Physician Traction or Shoulder Dystocia” (March 2008).

The substantive criticism of the article appears not to have been addressed as the claim failed on causation grounds, apparently having been struck out at an interlocutory stage:

“Starting with the premise that the case report was false, they allege that the falsity “caused” the juries in the malpractice trials to find against them. This optimistic allegation overlooks that, for aught that appears, causation is unprovable here and, thus, the causation allegation is wholly speculative. Consequently, the plaintiffs’ claim does not reach the plateau of plausibility which, under Iqbal and Twombly, is the new normal in federal civil procedure.”

Further discussion of the decision in an article entitled Sued for a Study by Walter Olson appears in