Claim Against Medical Experts Fails on Causation Grounds

By Gabriella Khorasanee, JD on October 21, 2013 | Last updated on March 21, 2019

It's common practice to sue doctors for medical malpractice -- why do you think healthcare (medical malpractice insurance) costs so much? But what if a patient's medical malpractice claims fail? Can they sue the doctors who wrote an article in a medical journal, which was admitted into evidence in the medical malpractice trial, on the theory that the article "caused" the juries to find against them?

The First Circuit said "no."


The plaintiffs in this case sued their respective doctors in separate, unrelated medical malpractice suits stemming from permanent brachial plexus injuries resulting from child birth. In both cases, a report, written by the defendants in this case, was submitted into evidence in the respective malpractice trials. Each trial resulted in a take-nothing verdict in favor of the doctors.

The plaintiffs joined forces in this case, and sued the authors of the report, the journal and the publishers of the journal alleging violation of the Massachusetts consumer protection laws, and fraud. The plaintiffs argued that the report was based on false information, and had the reports not been submitted to the juries in their previous malpractice actions, the juries would have found in plaintiffs' favor. The district court granted the defendants' motions to dismiss and the plaintiffs appealed.

On appeal, the First Circuit noted that the plaintiffs' arguments were "imaginative but unpersuasive;" the court gave them no points of creativity. Instead, the court found that pursuant to Federal Rule of Civil Procedure 8(a)(2)," plaintiffs have failed to please a plausible cause of action."

The court noted that the plaintiffs were merely making conclusory statements that did not rely on any factual basis. The plaintiffs argued that the claim raised questions of fact that should be determined through discovery but the court was unpersuaded. Finally, the court addressed the plaintiffs' concerns about the report being used in future litigation to the same effect, and noted that future plaintiffs are free to prevent the inclusion of the report under the Daubert doctrine.

Though creativity can often lead to new legal theories of redress, in this case plaintiffs were not successful. Even with creative arguments, one must still adhere to the fundamentals -- there's no way around causation.

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