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Ken Margolin
Ken Margolin
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Fake Studies for Medical Malpractice Defense

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Today’s Boston Globe carried an article with the title, “Bed sores aren’t always a sign of negligent care.” Having written blogs on this site, suggesting that severe pressures sores are usually caused by nursing home negligence, I read the Globe piece carefully (the law firm of Stark & Stark, has an excellent blog on the subject). My radar went up when I read the sentence that
“[T[he sentiment [that all serious bed sores are avoidable with proper care] was so strong that numerous nursing homes paid large legal settlements to families of patients who developed the sores….” The implication was that the settlements should not have been paid, and that the cases should have been defended based upon the “new findings” of some researches that “[A]t least some pressure ulcers are unavoidable.” Those findings may be true, given the broad scope of “at least some….,” but I will not be surprised if the studies commented upon in the Globe article, appear before juries considering nursing home negligent cases involving bed sores. I will be equally unsurprised to see the authors of these studies, retained as testifying experts, by nursing home defendants.

“Don’t believe everything you read,” has always been good advice. That may be especially true if an article in a prestigious medical journal, reads as if it were designed for insurance lawyers defending medical malpractice defendants – it may have been. Many members of the plaintiffs’ bar have long suspected that articles and studies have been crafted to aid defendants in cerebral palsy medical malpractice cases, and cases of erb’s palsy due to shoulder dystocia caused by negligent delivery. I encountered the phenomenon personally in a case I handled involving a neurologically impaired infant. When the defense listed their experts, there was the name of a doctor renowned for writing a plethora of articles linking various birth traumas to a significantly reduced life span. He was going to testify that my client would not live long, and that costs of care would be far less than we claimed. When I checked this man out further, it appeared that he had been often exposed as a well-credentialed shill for medmal insurers, and that he rode his articles to a lucrative career in defense testimony (he never testified in my case). The practice of writing articles designed to aid malpractice defendants, rather than to advance science, is cynical and unethical. Plaintiffs’ lawyers need to be familiar with the peer-reviewed literature relevant to their case, and to be wary of articles written with medmal defendants in mind.