How insurance companies and their experts strive to win at any cost - justice be damned!
Obstetrician Henry Lerner was a highly paid professional witness for doctors' insurance companies in birth injury cases. These cases primarily involved brachial plexus injuries as the result of shoulder dystocia (in layman's terms — catastrophic shoulder and arm injuries to infants as a result of becoming stuck during delivery).
It was Dr. Lerner's theory that even if a doctor utilized proper maneuvers, a baby could still have a severe brachial plexus injury. Indeed, Dr. Lerner opined that such injury could happen without any shoulder dystocia at all — just the natural forces of childbirth were sufficient.
But Dr. Lerner had a problem — there had never been a published record of a permanent brachial plexus injury without shoulder dystocia. That is, until Dr. Lerner's very own case report published it in the March 2008 American Journal of OB Gyn. There, the good doctor reported an actualbirth in Florida showing for the first time, "unequivocally," that his theory could happen. He reported that a baby had a permanent brachial plexus injury after birth with no shoulder dystocia, and in fact where the baby literally popped out on the first push, without the obstetrician even pulling at all.
One problem - the case report was a lie. Not only was what he reported not "unequivocal," but it was also refuted directly by the hospital records and delivering doctor's own testimony. Dr. Lerner deceptively chose not to report the following:
- The birth resulted in litigation (which ultimately settled) in which he was involved as a professional paid witness.
- The delivery record in fact noted "shoulder dystocia."
- The baby was not delivered after one push.
- The obstetrician testified that indeed she did pull (but not too hard, she said).
So this false article was published and ready to be used to support Dr. Lerner's misguided theory.
What were we to do? Thanks to a colleague in Boston, we found out the truth. We were armed at trial with the actual hospital records and deposition transcripts.
Dr. Lerner was exposed. He was completely discredited. He admitted that it would be wrong to write a phony article (although he tried to defend his) to thwart our system of justice and cheat little boys and girls throughout the country out of fair compensation. And the jury agreed, awarding our little client $2.4 million.
Justice was served, and one more attempt by an insurance company and its professional expert to win at any cost, was quashed.
