Birth Defect Lawyer Blog

Cape Cod does not normally come to mind as the center of a pollution controversy. Yet Cape Cod residents are preparing to protest the decision by the electric company NSTAR to spray herbicide on its 150-mile right of way next spring. Residents claim that the spraying will contaminate their public water supply, since NSTAR's easement runs through 78% of the public water recharge areas, as well as several private and community wells.

Environmental groups such as GreenCAPE have fought for 20 years to reduce the amount of herbicides used in Cape Cod. With NSTAR, they claim that its power lines run through backyards -- underscoring the fact that spraying the right of way is not just a remote issue, but affects people close to home. GreenCAPE has found that the four herbicides that NSTAR uses for spraying have been shown to be "potentially hazardous to human life and the environment." Sylvia Broude of the Toxics Action Center worries about Cape Cod's elevated breast cancer rates and its history of contaminated water. Many residents would prefer NSTAR to resume mowing the right of way to reduce plant growth rather than use herbicides.

NSTAR's media spokesman, Michael Durand, claimed that the company was working closely with the Cape Cod Commission. The Commission has been watching carefully the way NSTAR uses herbicides to remove undergrowth. His assurances are unlikely to calm the fears of Cape Cod residents. Each of the 15 towns in Cape Cod has submitted a resolution to the company to consider alternate methods of removal. A recent protest drew 40 people, and more protests are planned for Labor Day weekend. After that, the protests are expected to continue every three to six weeks.

Herbicides and pesticides have been linked to a number of health problems, including lower IQs in children and birth defects. Not long ago, a study showed that the Roundup herbicide caused damage to DNA, endocrine disruption, reproductive and developmental toxicity, and cancer. If your child has a birth defect that you believe may be linked to herbicide use, you may want to consider filing a toxic tort lawsuit against the one using the herbicide and/or the chemical manufacturer. For a successful suit against the one using the herbicide, you would need to prove that he or she owed you a duty of care (since you could be foreseeably affected by the herbicide); that this duty was breached through negligence, or behavior that did not meet reasonable standards; that this unreasonable behavior led to your injury; and that damage was suffered (your child's birth defect). You would apply these steps if you also wanted to prove the negligence of the manufacturer.

If you want to prove that the manufacturer was strictly liable, the steps are similar. Except that instead of arguing that the manufacturer's behavior was unreasonable, you would argue that even if it weren't, the product (herbicide) was unreasonably dangerous. To do this, you would need to show that the product could have been made safer without sacrificing effectiveness or making it too expensive. From there, you would argue that the product caused an injury, and you suffered damage by way of your child's birth defect. For a remedy, you could either seek damages (money amount) or an injunction against the user to prevent him or her from doing any more herbicide spraying.

Continue reading "Cape Cod Residents Protest Electric Company's Use of Herbicide on Nearby Right of Way" »

While cerebral palsy remains a challenge, there are many stories of individuals and communities rising up to help those with the disability. One comes from Butler County, Kansas, where a camp for children with cerebral palsy has avoided the auction block, for now. The 151-acre Jaycees' Cerebral Palsy Ranch, which was founded in 1964 and has served 12,000 children, was in serious danger of going out of business due to a decline in Jaycee member donations over the years. Once members of the community knew the camp's situation, the former Jaycees and other camp supporters combined to donate $12,000. The camp still needs to earn $53,000 to meet its goal of $65,000 in 45 days. Even so, the camp's Board of Directors are feeling much more positive about its long-term outlook, and many former Jaycees have pledged to make more donations.

In another story, an electrical engineer announced back in March that he would try to make the Amazon Kindle more accessible for his little sister with cerebral palsy. Because cerebral palsy makes motor functions difficult, many have difficulty using the Kindle's small buttons. The engineer, Glenn, therefore decided to create a "FrankenKindle." He recently posted the results of his work on YouTube: the FrankenKindle has larger buttons and a five-way keypad. Its interface was based upon the V.Reader, which his sister found easier to use, but was strictly for children's books. While the FrankenKindle looks less elegant than a regular Kindle, the most important thing is that it works.

Cerebral palsy can be the result of many different factors, including low birth weight, premature birth, deficiencies in the placenta, a bacterial infection, and a lack of oxygen during the birthing process. People with cerebral palsy may have problems with mobility, difficulty speaking and swallowing, problems with hearing and sight, and learning disabilities. While many people have risen to help those with cerebral palsy, as shown by Australia's National Cerebral Palsy Week, it remains challenging and expensive for any family whose child has this disability.

One cause of cerebral palsy is oxygen deprivation at birth. This can be caused by the doctor's failure to properly deliver the baby through the birth canal. If you believe that this could be the cause of your child's cerebral palsy, you might consider filing a medical malpractice lawsuit. To successfully file a suit, you would need to prove that the doctor owed you a duty of care, that the doctor breached that duty through unreasonable behavior, that the doctor's behavior caused you to suffer an injury, and the result was damage in the form of your child's cerebral palsy.

Proving that your doctor owed you a duty of care would not be difficult, because it is established by law. Furthermore, proving breach of duty may be easier than if you were trying to establish it for a non-professional, because doctors are held to a heightened standard: he or she must use the skills and judgment of a reasonable doctor in that same field. Where you might have difficulty is proving that your doctor's actions were responsible for your child's disability. You would need to rule out other factors, such as an infection or premature birth. You would also need to prove that your doctor's actions were unreasonable, and that a reasonable doctor in his position would have acted differently.

Continue reading "Kentucky Camp for Cerebral Palsy Avoids Closure, While Brother Makes His Sister a "FrankenKindle"" »

Controversy over mountaintop mining in Appalachian states continued this week. After a study produced strong evidence that counties with mountaintop mining had higher rates of birth defects, the states' voters have finally weighed in -- and they are firmly against the practice.

A coalition of environmental groups -- Appalachian Mountain Advocates, Earth Justice, and the Sierra Club -- released a poll of voters from West Virginia, Virginia, Kentucky, and Tennessee. The poll found that 57% of voters opposed mountaintop removal coal mining. Just 20% supported it. The opposition was bipartisan, with 64% of Democrats, 51% of Republicans, and 60% of independents opposed to mountaintop mining. Instead, what these voters wanted was stronger clean water protections -- with 75% of Republicans and even 68% of "Tea Party" voters in favor. The strongest opposition to mountaintop mining came from voters in Virginia and West Virginia.

The controversy began when a study was released showing a strong correlation between counties with mountaintop mining and higher rates of birth defects. While the study's authors noted that there was no direct link, when coupled with other studies that showed the harmful effects of mountaintop mining, there was enough evidence to make the case for banning the practice. This prompted a blistering rebuttal from a Kentucky state lawmaker. Hubert Collins argued that information from the study had been "cherry picked," and that drug and alcohol abuse were the more likely causes of birth defects. From the poll, it appears that many Kentucky residents disagree with Collins's conclusion. Jane Branham of the Southern Appalachian Mountain Stewards of Virginia also noted that stopping mountaintop removal would not kill jobs, because the practice requires very few people. Instead "it's literally killing people."

The study showed that babies in mountaintop mining counties were more likely to be born with heart malformations, cleft lips, spina bifida, circulatory ailments, and diaphragmatic hernia. If your child was born with one of these birth defects and you live in a county that practices mountaintop mining, you might consider filing a toxic tort lawsuit. Even if you do not live in a mountaintop mining area, you might want to file a toxic tort suit if you believe the birth defect was caused by another pollution source.

For a toxic tort lawsuit, you would need to show that the defendant owed you a duty of care, that the defendant breached that duty through unreasonable actions, that the breach lead to your injury, and that the result was damage in the form of your child's birth defect. For your suit to be successful, you ought to be able to identify a specific pollution source, such as a power plant. If the source of the pollution is too diffuse or too remote, you may have a more difficult time making a connection. If the polluter is too remote, you also might not be able to prove that it owed you a duty of care. A duty of care is owed only to those who are foreseeably affected by your actions. For people in mountaintop mining counties, it would be easier to prove that the local mining practices caused their child's birth defect than it would be for those who were affected by pollution from several miles away.

Continue reading "Poll Results Show That Voters in Appalachian States are Heavily Opposed to Mountaintop Mining" »

Researchers have found that the risk of more than one sibling having autism is much greater than previously believed. A child born with an autistic older sibling has a 20% chance of developing autism as well.

The study consisted of 12 different sites in the United States and Canada, where researchers tracked 664 infants with at least one older sibling with autism. They found that 19% of the infants (132) received an autism diagnosis by the age of three. Earlier studies, involving fewer sites, reported between 3% and 14%.

Still, scientists cautioned that the 20% chance of developing autism was an average -- that it could vary depending upon the family. The vast majority of children born with autistic siblings never showed symptoms themselves. Even so, the information allows families with autistic children to weigh the pros and cons of having another child.

Autism remains little understood amongst scientists and the general public. It affects 10 to 20 out of every 10,000 people, and is four times more common among boys than girls. Scientists believe that it may be linked to prenatal development, with possible influences including genetics, infections, and pollution. This blog has discussed the extent to which multiple births and prescription antidepressants could play a role in having babies born with birth defects. The one thing scientists seem certain of is that no evidence exists that links autism with common childhood vaccinations such as the ones for measles, mumps, and rubella.

If you have an autistic child and believe that external factors that affected his prenatal development were responsible, you might consider filing a lawsuit. First, you would need to rule out other causes. For instance, this article suggests that one cause could be genetic. You would need to be prepared to argue why genetics were not a factor. You would also need to determine exactly what the causes were. Were you given prescription antidepressants during your first trimester of pregnancy? Is there a strong pollution source near you? If you feel that prescription antidepressants were the main cause, you might consider a medical malpractice suit against your doctor and/or a suit against the drug manufacturer. You would argue that your doctor was negligent, because he owed you a duty of care, failed to act reasonably and breached that duty, and as a result of his actions, you and your child were injured and suffered damage. In this case, maybe your doctor knew about the risks of the antidepressants, but never informed you. A doctor has a duty to keep his patients reasonably informed of risk. He also might not have done what was necessary to stay reasonably informed himself.

Continue reading "Families With an Autistic Child Have a One in Five Chance of Having Another Child With Autism" »

A recent report in the journal of Pediatrics has linked child brain tumors to birth defects. Currently 4,000 American children and teenagers each year develop a tumor in the brain or spinal cord, according to the American Cancer Society. While a small percentage of these tumors can be linked to specific genetic syndromes, little has been known until now about the other cases.

Researchers used a California database of cancer cases to locate 3,733 cases of brain and spinal tumors in children younger than 15 between 1988 and 2006. Of that total, 1.2% had a birth defect, compared with .06% of 15,000 children without cancer. Having a birth defect also increased the likelihood of certain tumors. Children with birth defects were four times more likely to develop a primitive neuroectodermal tumor -- tumors that start in immature cells of the brain -- than children without birth defects. They were also six times more likely to develop rare germ cell tumors. Tumor risks were also heightened amongst those who had been born to mothers with at least two late-pregnancy (post-20 weeks) miscarriages. Since both tumors and pregnancy losses are the result of a genetic abnormality, it is possible that the same genetic abnormality could be linked to higher cancer rates.

Overall, the researchers believe that genetics is the determining factor for birth defects and childhood cancers. Still yet to be determined is whether only certain birth defects, such as in the brain or heart, heighten the risk.

Past studies have shown that exposure to several environmental factors in the womb increases the chance of developing brain or heart birth defects. Babies born in West Virginia, Kentucky, and Tennessee might be more likely to have spina bifida and heart malformations if their mothers live in a county with mountaintop mining. Babies born in communities near toxic waste sites also have a higher chance of brain and heart malformations. While these researchers may believe that genetics are responsible for childhood cancer, it is not impossible that external factors could also be responsible.

If you believe that your child's brain cancer might be linked to a birth defect caused by an external pollutant, you might consider filing a toxic tort lawsuit against the one responsible. First, you would need to establish a clear link between the brain cancer and the birth defect. Next, you would need to rule out other causes, such as genetics or home environment (such as a parent smoking). You would then need to be able to show which external pollutant was the cause. If you live in a county with mountaintop mining, the cause should be fairly obvious: you could use the numerous studies linking its pollution to birth defects to make your case. Once you were able to locate the cause, you would argue that the polluter was negligent because it owed you a duty, breached the duty, the breach injured you, and it caused damage in the form of your child's birth defect and (later) cancer.

Continue reading "Babies Born With Birth Defects are More Likely to Develop Childhood Brain Tumors" »

A recent study revealed that pregnant women in California have the highest levels of polybrominated diphenyl ethers (PBDEs) worldwide -- even though the flame-retardant chemicals were banned in 2004. U.C. San Francisco researchers tested 25 pregnant women in their second trimester in 2008 and 2009, and found that they had extremely high levels of the chemical in their bloodstream, heightening the risk that their babies could be born with birth defects.

The high levels of PBDEs remain due to all of the pre-2004 furniture and equipment still being used. In the 1970s, the State of California passed regulations that strictly regulated flammable materials. Manufacturers thus added flame retardants to a variety of products such as couches, carpets, televisions, and computers. Today, pregnant women who purchase used cribs and car seats also unknowingly purchase the chemicals with them. As lead researcher Ami Zota explains, the chemicals were sprayed onto the foam, so they were not "chemically bound." This left the chemicals free to seep into house dust and indoor air. Even throwing furniture onto a landfill could increase exposure to flame retardants.

Prolonged exposure to PBDEs has been linked to damage to the liver, thyroid, and nerve development. In children, exposure to PBDEs has been linked to lower IQs. Zota cautions that further study still needs to be done on why and how older furniture releases the chemical. The highest levels of exposure have been found in lower-income households where secondhand furniture may be more common.

Parents and children are often very sensitive about the subject of child intelligence. They may not want to believe that their child's IQ is affected in any way. However, a parent who believes that his or her child's IQ has been harmed, by exposure to flame retardants while still in the womb, may have options for relief. The problem shown by the study is that the culprits are items made prior to 2004. Back then, the manufacturers' actions were in line with state regulations, and thus were not illegal. However, making furniture after 2004 with flame-retardant chemicals would against the law. If you discovered that your furniture was made after 2004 and contained PBDEs, you could sue the furniture manufacturer for negligence and/or strict liability. You would argue that the manufacturer was negligent because it owed you a duty to create a safe product; its failure to comply with the law was one clear sign that it had breached that duty; that breach caused you injury, and you suffered damage in the form of your child's lower IQ. For strict liability, you would argue that even if the manufacturer were not negligent, it is strictly liable because it created a product with a dangerous manufacturing or design flaw -- a product that contained PBDEs.

Since any child born after 2004 would still be quite young, it might be difficult to argue that his or her intelligence was permanently affected. You might be able to provide support via intelligence tests, school assignments, doctor evaluations, and psychologist evaluations. Most importantly, you would need to prove that your furniture was manufactured after 2004 and that it (not a piece of furniture made prior to 2004) was responsible for the release of PBDEs. To do that, you would need an expert evaluation of the furniture and your home environment. Should you find that none of your furniture was made after 2004, your best option is simply to remove flame-retardant material from your home however possible.

Continue reading "New Study Finds That Pregnant Women in California Have Highest Levels of PBDEs Worldwide" »

The U.S. Food and Drug Administration (FDA) has issued a warning to pregnant women about taking the antifungal medication, Diflucan (also known as fluconazole). It claimed that a dose of 400 to 800 mg per day could result in their babies being born with a rare birth defect. Diflucan is commonly used to treat vaginal yeast infections and some more serious fungal infections.

The birth defect occurred in cases where women took the antifungal medication during their first trimester. However, the FDA cautioned that a single 150 mg dose of the antifungal drug did not create the same harmful result. Because of this, the FDA changed its classification of the medication from Category C to Category D. Category C is assigned to medicines that have not been studied in pregnant humans, but appear to be harmful to the fetuses of pregnant animals. Category D is assigned to medicines that have been shown to cause harm to fetuses of pregnant humans, but the medicine may still be given if the doctor believes that benefits to the pregnant woman would outweigh risks to the fetus. Diflucan remains a Category C when taken in a single large dose to treat vaginal yeast infections, but it is a Category D when used for other purposes.

Besides evidence of serious birth defects in human fetuses, Diflucan has also produced the following problems in pregnant rats and rabbits: reduced weight gain in the mother, miscarriages, increased weight of the placenta, and babies born with cleft palate or facial abnormalities. The FDA cautions women to let their doctors know if they are pregnant so that their doctors can share with them the pros and cons of taking Diflucan.

If your child has a birth defect that you believe may be caused by a high dose of Diflucan, you might consider filing a products lawsuit against the manufacturer or, depending upon the circumstances, a medical malpractice suit against your doctor. For a products liability lawsuit, you would argue that the manufacturer was negligent and/or strictly liable for the harm caused to your child in the form of a birth defect. To prove negligence, you would need to show that the manufacturer owed a duty of care to act according to the most reasonable standards of the industry in producing the antifungal medication. The manufacturer did not act reasonably, and as a result, your child was harmed by defective medication, resulting in the birth defect. To prove strict liability, you would need to show that even if the manufacturer acted reasonably, it was still liable because the medication had a design flaw that made it unreasonably dangerous, or the warning label did not adequately inform of foreseeable dangers. You would also have to show that the manufacturer could have produced a safer medication that had the same effect and did not make it cost prohibitive.

To succeed at a medical malpractice suit, you would need to show that your doctor owed you a duty of care to behave reasonably according to the profession, but failed to act reasonably. Behaving "reasonably" includes staying reasonably informed of the latest developments in medicine. You could argue that your doctor did not inform himself of the dangers of Diflucan, and as a result, never informed you of them before prescribing it for your yeast infection. You could also argue that your doctor did know the dangers, and that you were pregnant, but failed to explain the dangers to you before prescribing the medication. As a result of your doctor's actions, your fetus was harmed, and your baby was later born with a serious birth defect.

Continue reading "FDA Warns Pregnant Women That Taking Diflucan Could Result in Babies Born with Serious Birth Defects " »

Mothers in Massachusetts have organized "stroller brigades" as a way of voicing their concerns about environmental toxins in household consumer products. On August 10th, 25 mothers and their children plan to walk from Boston's City Hall Plaza to the offices of Senators John Kerry and Scott Brown to send a message to the Senators, asking them to take a leadership position on this issue. Similar action will be taken in 17 other states.

Mothers across the country are responding to increasing evidence that toxins in household chemicals are responsible for a variety of health problems, including birth defects. The mothers in Massachusetts hope to rally their Senators' support around the Safe Chemicals Act of 2011 (S.847). Back in May 2011, Jessica Alba addressed Congress about the importance of upgrading the current chemical regulations, which were established in the 1976 Toxic Substance Control Act. Serious oversights have prevented several common chemicals from being tested. The Safe Chemicals Act of 2011 would address these problems by increasing chemical safety and providing better information to consumers about hazardous products. The Act was introduced in April by Senators Frank Lautenberg, Barbara Boxer, Amy Klobuchar, Al Franken, and Charles Schumer. It may receive a vote this fall in the Senate's Environment and Public Works Committee.

One mother at the rally, Kristi Marsh, is a breast cancer survivor. She worries that "in the last six decades, we have been inundating our bodies with thousands of chemicals whose safety is unknown," and insists that "I will do what I can, but I cannot do this alone. I need progressive leaders willing to stand up for my health and our children's health." The rally was organized by Safer Chemicals, Healthy Families, a large coalition of public health, parenting, environmental, and community groups.

Common birth defects linked to toxic chemicals include congenital heart disease and learning disabilities. If your child has a birth defect that you believe may be linked to the toxins in household products, you may be able to get relief through a toxic tort lawsuit against the manufacturer. In a toxic tort lawsuit, you would argue that the manufacturer was negligent and/or strictly liable for your child's birth defect. For negligence, you would argue that the manufacturer owed you, as a consumer, a duty of care to produce a reasonably safe product. The manufacturer did not act reasonably, and as a result, your child's injury occurred. For strict liability, you could argue that even if the manufacturer acted reasonably, it is still liable for your child's birth defect because the product itself had a manufacturing defect (unreasonably dangerous off of the assembly line), a design defect (all chemicals in that group are dangerous), or a warning label that inadequately warned of foreseeable dangers. Before considering a lawsuit, you ought to make certain that other causes, such as genetics or diet, can be effectively ruled out.

The birth defect attorneys at Oshman & Mirisola, LLP have successfully represented clients in birth defect lawsuits for more than 35 years. If your child has a birth defect that you believe may be linked to harmful chemicals in common household products, please contact us today at (800) 400-8182 or submit our online Contact Us form.

According to one new medical field, for adults who need to lose weight or avoid cardiovascular disease, the fault may not lie in self control, but in conditions they were exposed to in the womb. The new field, called developmental origins of health and disease, is dedicated to studying how any condition outside the womb, from nutrition to environmental toxins, can affect someone for the rest of his or her life. The theory is that the fetus's genetic map forms inside the womb in response to factors in the environment outside of it. If the fetus is exposed to environmental toxins, it could affect the person's future health and behavior in specific ways.

British researcher David Barker helped pioneer this field with his work in the 1980s and 1990s. He showed that babies born with low birth weight were more likely to develop coronary disease. The lack of nutrition could cause development to focus on the brain and to neglect other organs, making them vulnerable to disease later in life. Since then, this field has received increasing attention and support. Stephen Lye, a professor of obstetrics and gynecology at the University of Toronto, received a $1 million award from the Connaught Global Health Challenge. He intends to use it to create the Institute for Human Development to explore the early effects of environment on health. Meanwhile, Brown University will also open a center to explore early human development.

There are several challenges to this field's approach. One is that scientists would need to record a person's progress for years, from fetal development to adulthood. However, scientists are confident that they will meet the challenges successfully. Their hope is that by identifying prenatal causes of diseases that develop later in life, they can help with strategies for prevention. Already, their research has found evidence that mothers who underwent periods of stress while pregnant were more likely to have children who were anxious or who suffered from cognitive problems.

An intense debate remains between those who believe that our problems could be genetic and those who believe that they are linked to human fallibility. Many hold the firm belief that each person is responsible for his or her destiny; if a person is overweight or suffers from health problems, it is because the person lacks proper control. While evidence such as the studies cited above are causing people to rethink these assumptions, it could take time before the beliefs of the development origins of health and disease field become the norm.

That is why it would not be a good idea to file a lawsuit on the basis of these findings. If you suffer from obesity, for instance, you would need to provide strong evidence that the predominant cause was an environmental factor, not your own behavior. Many states have systems of "comparative fault" or "modified comparative fault," where you can collect a money award in a lawsuit, even if you are partially at fault for your injury. So if you were 10% at fault for your injury, you would get 90% of your potential award. However, in a modified comparative fault system, if you were responsible for more than 50% of your injury (and in some states, at least 50%), you would not be eligible to collect an award. Therefore, if you tried to convince a jury that your obesity were due to outside factors, you would need to present a strong case that diet and lifestyle were not equally responsible, or the jury would likely find you equally to blame for your condition. It would also be a great challenge to pinpoint which environmental factors might have affected you in the womb. Most people lack the knowledge of what their parents were exposed to during that time. Without knowledge of what specifically caused your obesity, you would have a difficult time winning your case.

Continue reading "Toxic Exposure in the Womb May be Responsible for Certain Adult Diseases" »

In Australia, this week is National Cerebral Palsy Awareness Week. It was created to not only celebrate the achievements of those born with cerebral palsy, but also to promote more inclusion for those with cerebral palsy and other disabilities.

Activities include a wheelchair soccer session, an "ABBA Extravaganza," and CP Week Community Excellence Awards. Diane Heggie, President of Cerebral Palsy Australia, declared: "National Cerebral Palsy Awareness Week highlights that with the right support people with Cerebral Palsy can and do reach their potential, despite the economic, physical and attitudinal barriers often faced."

Cerebral palsy has several different variations. It includes spastic cerebral palsy (muscle stiffness and permanent contractions), athetoid or dyskinetic cerebral palsy (uncontrolled, slow, writhing movements), and ataxic cerebral palsy (poor coordination and balance). It affects one in 500 Australians, with the result being that 34,000 Australians currently live with the disability. By contrast, 1.5 to two million children and adults have cerebral palsy here in the United States. While there is no U.S. equivalent of National Cerebral Palsy Awareness Week, there are several American institutions devoted to understanding and promoting awareness of cerebral palsy. These include United Cerebral Palsy, which "educates, advocates and provides support services to ensure a life without limits for people with a spectrum of disabilities," and the American Academy for Cerebral Palsy and Developmental Medicine, devoted to providing research and services for people with developmental disabilities.

Even though people with cerebral palsy have made great strides over the past decades, it remains a challenge both for the person and for his or her family. Care and treatment of someone with cerebral palsy can be time consuming and expensive. That is why many consider prevention to be key. Causes of cerebral palsy include a lack of oxygen during birth, a bacterial infection during pregnancy, an infection such as the German measles during pregnancy, low birth weight, and more. While most of these causes are beyond human control, some are the result of preventable errors.

If your child has cerebral palsy and you believe that it was the result of preventable medical error during delivery, you can sue your doctor for medical malpractice. To do so, you would need to show that he or she was negligent because he or she did not show the reasonable care that was expected of his or her profession. The doctor's lack of care led to an error that resulted in your child's birth defect. As a result, you wish to receive compensatory damages (money award) for medical expenses, pain and suffering, and more. In order to be successful, you must show that your doctor had the time, knowledge, and equipment to avoid the medical error, but failed to act appropriately. Hospital medical records can provide good evidence in support of your claim. A physician-patient privilege may prevent you from accessing them unless you claim physical or mental injury. If the privilege does not apply (which it likely would not in your case, since you are alleging an injury), most hospital records can be claimed via a subpoena for production of evidence. This is a court order requiring one party to appear before the court and produce evidence for use at a hearing or trial.

Continue reading "National Cerebral Palsy Week in Australia Seeks to Celebrate Achievement, Promote Awareness" »

A champion of the coal industry in Kentucky has attacked a recent study finding that mountaintop mining was responsible for more birth defects. Kentucky legislator Hubert Collins complained: "Kentucky's two largest newspapers cherry-picked information from the study, highlighting the sensational and scary while ignoring basic facts."

The study, discussed in an earlier post, found that in counties with mountaintop mining, the birth defect rate was 235 per 10,000 live births, compared to 144 per 10,000 live births in counties without mountaintop mining. Birth defects in mountaintop mining counties included cleft lip, spina bifida, malformed hearts and genitals, and other ailments.

Collins complained that one of the study's authors never made a direct connection between mountaintop mining and birth defects. He claimed that other factors such as drug and alcohol abuse were more likely to be the cause. He challenged the Kentucky media to compare mountaintop mining birth defects to those in areas with agricultural and urban runoff.

Yet others have defended the study, noting that the study's authors were aware of the possible effects of drug and alcohol abuse, which is why they carefully controlled those factors while analyzing the study. Even taking those factors into account, the result was more birth defects in a mountaintop mining county than elsewhere. Furthermore, Collins ignored the fact that the study's authors stated that the findings were consistent with other studies that showed a link between health problems and mountaintop mining.

Mountaintop mining has been found to release mercury, lead, and arsenic into the air and water. Even if you do not live in an area with mountaintop mining, these toxins can be released into the atmosphere through other sources, such as urban power plants. If you believe that your child's birth defect can be linked to one of these toxins, you may consider going forward with a toxic tort lawsuit. First, you would want to see if the cause of the pollution were a local source, or a more remote source. If it is local, you should be able to draw a stronger correlation between the pollution source and your child's birth defect. A too-remote source might make the link harder to prove, even if it is the cause. You would also want to rule out other possible sources -- such as drug and alcohol use, genetics, and other environmental chemicals.

Continue reading "Kentucky Legislator Criticizes Study Linking Mountaintop Mining to Increased Birth Defects" »

Ground Zero rescue workers reacted with fury to a new study claiming that there was no causal link between Ground Zero toxins and cancer. The results of the study, released by the National Institute for Occupational Safety and Health, mean that 9-11 first responders who became ill after breathing in fumes and toxins will not receive monetary assistance.

Dr. John Howard, director of the National Institute, said that it is difficult to prove a causal link to cancer because cancer is so prevalent throughout the United States. One in two men and one in three women are likely to develop cancer throughout their lifetime. Yet first responders feel differently. John Feal, a rescue worker and founder of the FealGood Foundation, states: "I've been to 53 funerals, and 51 of them were for cancer."

First responders for 9-11 had hoped that the Zadroga Act, which allocates $4.3 billion over the next five years to help first responders with ailments linked to Ground Zero, would cover cancer. That it will not is, in the words of first responder Jeff Stroehlein, yet another hardship that comes to them "blow by blow." Even so, the report notes that just because there is no explicit causal connection does not mean that a causal connection is absent. Another review will take place in 2012.

The collapse of the Twin Towers released dust into the atmosphere that, by some accounts, contained 2,500 contaminants, including 50% non-fibrous material and construction debris, 40% glass and other fibers, 9.2% cellulose, and .8% of asbestos, as well as lead and mercury. Reported health results of exposure include death from pulmonary fibrosis and severe respiratory ailments.

Lead and mercury alone have been linked to a variety of health problems, including birth defects. Many of the toxins released on 9-11 are present in some form in our drinking water or surrounding atmosphere. While there was no explicit link in the case of the Ground Zero first responders, you might have an easier time proving a link between a local pollution source and your cancer or your child's birth defect. Studies, such as the recent one done on mountaintop mining, have shown a connection. If you or your child have health problems that you believe can be traced to harmful toxins in the atmosphere, you may want to file a toxic tort lawsuit. You would need to identify the source -- whether there is one or multiple -- and be prepared to provide strong support for your case. You might consider finding an expert witness who would verify your conclusions. The process can vary state by state. If your case is in federal court, you could get a non-testifying expert -- someone who helps you evaluate your case -- or a testifying expert, one who provides testimony in court. You do not need to disclose the identity of a non-testifying expert to the opposing party, but a testifying expert can be discovered and also must meet the standards of the federal rules of evidence.

Continue reading "9-11 Rescue Workers Protest Findings That Show No Link Between Ground Zero Toxins and Cancer" »