Birth Defect Lawyer Blog

New research has found that a powerful parasite is responsible for many premature births and birth defects. Scientists at the National Institute of Allergy and Infectious Diseases (NIAID) determined that Toxoplasma gondii, the cause of toxoplasmosis, can also cause early births and damage to babies' eyes or brains while in utero.

Toxoplasma gondii comes from eating undercooked meat or from contact with infected cat feces. If the parasite is not detected or treated, the infection remains in the mother's system and could be passed to the fetus. Researchers used a new blood test to detect any strain-specific antibodies that distinguish infecting strains from one another. The new test improves upon current ones in that current tests can only determine whether a person ever was infected with a strain of Toxoplasma parasite. The test was applied to blood samples from the years 1981 through 2009. In 183 mother-child pairs used for the study, researchers found that of the 15 types of Toxoplasma gondii strains, there was evidence of both Type II -- a strain prevalent in France -- and non-Type II strains.

Non-Type II parasites were found to be more closely associated with premature birth. Those infants infected by non-Type II strains were more likely to suffer from a severe birth defect than infants infected by Type II strains. Severe eye damage was found in 67% of non-Type II cases -- 59 out of 88 total -- while severe eye damage was found in only 39% of Type II cases -- just 18 out of 46.

The researchers stressed that the link between the strains and the birth defects or premature birth was not conclusive. An infant could have a mild or severe birth defect regardless of the strain.

Toxoplasma gondii infection is often the result of poor practices at home -- either not cooking meat long enough or failing to wash one's hands after handling the cat's surroundings. However, it can also be due to an external cause. You might have been infected after going to a restaurant and eating meat that was not properly cooked. If so, and your child suffered a major birth defect as a result, you might be able to sue the restaurant for negligence.

Continue reading "Researchers Find a Link Between a Parasite and Severe Birth Defects" »

This blog has previously discussed the potential for hydraulic fracturing -- commonly known as "fracking" -- to cause health problems and birth defects. The fracking process is used to drill for difficult-to-reach oil or gas. It uses pressurized fluid in order to create rock fractures. While most of the fluid is water, around 2% is made up of chemicals, such as biocides, surfactants, and emulsifiers. These chemicals are found in common household products such as cosmetics, detergents, and floor waxes. Besides potentially polluting groundwater, the fracking process also pollutes the air. In certain parts of the country, such as western Wyoming, the ground-level ozone levels were worse than the kind found in Los Angeles.

Now the Environmental Protection Agency (EPA) has issued the first national standards to curb air pollution linked with fracking. The fracking process has led to smog filled with cancer-causing toxins. Smog has been linked to premature birth and the birth of children who later develop anxiety and depression.

The new EPA standard would take effect in 2015. It would cut volatile organic compounds, which contribute 190,000 to 290,000 tons to smog each year, and benzene by 12,000 to 15,000 tons per year. It is expected that methane levels will also be reduced due to new technologies being required to meet the tougher standard.

At present, more than 13,000 wells are being fractured across the country. Many watchdog groups support the new standard, stating that it will force operators to capture gas that escapes the wells, rather than have it pollute the air. Others are more critical, pointing out that the new EPA rule gives the industry more than two years to comply, much longer than necessary.

Nonetheless, the new rule will be a helpful step in preventing conditions known for causing not only premature birth, but also cancer and heart and lung problems. Even if your child has no noticeably birth defects, just being delivered too soon can affect his or her cognitive and physical development. While it is often difficult to file a lawsuit against the causes of smog, since they are usually quite diffuse, you may be able to successfully sue a hydraulic fracturing company if you can prove that they are the sole cause of smog in your region. If you believe that smog from hydraulic fracturing caused your child to be born premature, you could file a toxic tort lawsuit against the company. To succeed, you would need to provide evidence that the smog from fracking, and not some other cause, was the reason your child was born prematurely. It might not be difficult to prove that the smog came from fracking because fracking is usually done in open spaces, rather than in a heavily metropolitan area.

Continue reading "EPA Establishes New Air Pollution Limits for Hydraulic Fracturing" »

Recently, this blog discussed a study that showed that pregnant women who lived in smoggy conditions were more likely to give birth to babies who would suffer from anxiety and depression. Now, new evidence has emerged that exposure to a combination of processed foods and toxins like mercury may cause children to develop autism.

The study, published in Clinical Epigenetics, looked at a variety of past data on autism, then created an expanded Mercury Toxicity Model. The Mercury Toxicity Model is meant to explain how mercury exposure, nutritional deficiencies, and metabolic disruptions help lead to the development of autism. The researchers then did a comparison between American and Italian populations to see if any factors explained why autism rates in the United States continued to rise, while rates in Italy remained extremely low, just .1%.

What researchers found, first of all, was that Americans consumed large quantities of high-fructose corn syrup. In 2009, the rate was 35.7 pounds per year. The peak rate of consumption coincided with peak growth rates of autism in California. Researchers determined that one explanation for the link could be that high-fructose corn syrup depleted zinc reserves in the body. Zinc interferes with the elimination of heavy metals from the body. Without it, researchers think that Americans are much more vulnerable to mercury, arsenic, and cadmium intoxication, especially young people. All three of these toxic minerals affect brain development. Moreover, consumption of high-fructose corn syrup can lead to calcium depletion, which also impacts brain development.

The number of autistic children between the ages of 6 and 21, who were receiving special education, spiked 91% between 2005 and 2010. The researchers stressed that this is a strain on the American education system and a crisis that should be addressed.

No responsible parent thinks that just by feeding a child, he or she could be harming the child's development. Parents who want to protect their children have the option of filing a product liability lawsuit against the manufacturer. The parent could argue that the manufacturer of the food product had a responsibility to consumers to create as safe a product as possible. The manufacturer breached that duty by filling the food product with high levels of high-fructose corn syrup, despite being able to create a safer product -- at no greater cost -- without it. The breach caused your child's injury -- depletion of zinc and calcium reserves and increase in toxins. The resulting damage was your child's autism. Of course autism remains a mystery in many respects, and high-fructose corn syrup may be just one factor among many. However, it seems like a large coincidence that high-fructose corn syrup intake would increase at the same time as autism spiked in certain parts of the country.

Continue reading "Study Finds That Children Exposed to High Levels of High-Fructose Corn Syrup More Likely to Develop Autism" »

Dozens of farmers from Argentina have filed lawsuits in Delaware court, claiming that tobacco manufacturers such as Phillip Morris knowingly poisoned them with pesticides and causing "devastating birth defects" in their children.

The farmers, who worked on small family farms in Misiones, a rural northeastern province, grew tobacco for U.S. distributors. Their lawsuit is aimed not only at Phillip Morris, but also at Carolina Leaf Tobacco, Universal Leaf Tobacco Company, and Monsanto, among other companies. The farmers argue that these companies made the farmers switch from a native brand of tobacco to a special Phillip Morris brand that required more pesticides. The companies then pushed for the farmers to use excessive pesticides and herbicides, especially Roundup, an herbicide that has been discussed in this blog.

The farmers allege that none of the companies ever warned them about the dangers of using Roundup, or glyphosate, in quantities greater than the recommended amount. Their 55-page complaint claims that the companies pushed for pesticide and herbicide use even though they were on notice that the farmers lacked the necessary protective gear. Lacking training in chemical disposal, farmers ended up disposing of excess pesticides into areas that had contact with the water supply. The result was that their babies showed an alarming number of birth defects, including cerebral palsy, spina bifida, missing fingers, blindness, and congenital heart defects.

For the harm they suffered, the farmers as a group seek compensatory and punitive relief for under the following theories: negligence, product liability, breach of warranty, ultra hazardous activity, aiding and abetting, willful and wanton misconduct and violations of Argentine laws.

It remains to be seen if the farmers are successful, but the harmful effects of Roundup are already known. Here in the United States, there have been community movements to get rid of the herbicide, which also poses a risk of birth defects here. If you live in the U.S. and have a child with a birth defect that you believe was caused by herbicides, like the Argentinean farmers, you can sue for relief under multiple theories. Most theories will likely be found under tort law, such as negligence, product liability, and breach of warranty (which is actually a theory under contract law, but is often included with tort claims). The factors for negligence and product liability are similar -- the alleged offender must have a duty to you, have breached that duty, the breach must have injured you, and you suffered damage as a result. The main difference is that with product liability, the offender can be guilty of a breach even if he or she were not negligent.

Continue reading "Argentinean Farmers Sue U.S. Tobacco Companies For Promoting Pesticides That Cause Birth Defects" »

This blog has previously discussed the dangers posed by nail polishes and toxins in salons. Now a new study has come out confirming that exposure to nail polish chemicals can lead to birth defects.

A Department of Toxic Substances Control report has found that nail polishes typically found in salons across California, despite claiming to be free of a "toxic trio" of substances, actually contain high levels of toxins linked to birth defects. These nail polishes, in salons across the state, have the potential to harm workers in as many as 48,000 nail salons.

The Department found these results after randomly choosing 25 brands of polishes that could only be found at nail salons. These included several brands of polish claiming to be free of three specific toxic chemicals: toluene, dibutyl phthalate (DBP) and formaldehyde. Large amounts of these chemicals have been known to cause developmental problems, asthma, and other illnesses in children. Department researchers found that 10 of the 12 products claiming to be toluene-free actually contain it. Not only that, but of the 10, four contained dangerously high levels. Of the nail polishes claiming to be free of all three chemicals, five of seven had high levels of at least one chemical.

The nail polishes said to carry the greatest dangers include products such as Sation 99 basecoat, Dare to Wear nail lacquer, and New York Summer Nail Color. Already, many nail salon workers have reported chronic conditions as a result of repeatedly inhaling fumes from the toxic trio, especially when working in spaces with poor ventilation.

It is legal for the toxic trio to be in nail polish if the bottles are labeled appropriately. The failure to account for the toxins may violate state law. The California Attorney General's office stated that it would review the Department's findings before deciding whether to take legal action.

Continue reading "Study Finds That Many Nail Polishes Across California Fail to Advertise Their Chemicals" »

A new study has found a clear link between a mother's obesity and the child growing up with autism. While the study does not conclusively prove that obesity causes autism, it does suggest that the parent's weight may make a difference.

The study -- conducted by U.C. Davis researchers and published in the journal Pediatrics -- looked at 1,000 children from California, between the ages of two and five years old. Of the total, 700 had autism or other developmental problems, while the rest had no noticeable problems. The researchers asked their mothers about their health and used medical records to confirm.

What they found was that women who were obese during pregnancy were 67% more likely to have autistic children than women of normal weight. In addition, obese mothers had twice the risk of children with other developmental delays. Overall, obese women had a one in 53 chance of having a child who developed autism, compared with normal-weight women, who have a one in 88 chance.

Researchers expressed concern with these findings, noting that one-third of Americans are classified as obese. Potential theories as to why it affects babies' development include the fact that obesity is linked with inflammation and elevated blood sugar. Excess sugar and inflammation in the mother's blood might reach the fetus and damage its brain. At the same time, researchers cautioned that obesity might not be the only factor in determining whether the child would develop autism. The women did not have blood tests available from pregnancy. Nor was there any information on their diet and activity that might have influenced their child's development in utero. Still, researchers believed that the results provided incentive for educating people about the importance of a healthy weight.

If your child has autism that could be linked to your obesity, you would obviously never think of filing a lawsuit against yourself for relief. The problem is that if you believed that the cause was something else, such as exposure to certain prescription medications or pesticides, and filed a lawsuit against the offender, the offender might cite studies like this as a defense. The offender might claim that your obesity was the true contributing factor, rather than the offender's product. That could pose a problem, because in certain states, if you are at least 50% at fault for a condition, you will not be able to collect an award from the other party. These states have what is called "comparative negligence," or "modified comparative negligence," as opposed to pure "contributory negligence." Contributory negligence means that even if you are 1% at fault, you may be denied the right to collect. By contrast, comparative negligence lets you collect an award even if you were partially at fault, as long as the other party was also partially at fault. With modified comparative negligence, the party suing can only be at fault for up to 50% of the damage. If you are 50.1% at fault, you are out of luck. Before filing any lawsuit, you should make sure that your state permits comparative negligence and be ready to address any defenses.

Continue reading "Study Finds That Obese Women More Likely to Have Children Who Develop Autism" »

In what is considered breakthrough research, scientists in Australia have discovered how nature and nurture interact to create birth defects. The study, conducted by scientists from Sydney's Victor Chang Cardiac Research Institute and published in Cell, shows how genetics and human habits interact to increase the risk of and severity of birth defects. These include birth defects affecting the face (such as cleft lip or palate), heart, kidneys, and brain.

The scientists found these results after studying individuals with congenital scoliosis and then conducting experiments with mice. With the congenital scoliosis, they found that the individuals had just one copy of a specific gene, rather than two functioning copies. When scientists tested this factor in mice, they combined the condition with oxygen deprivation, or hypoxia. They found that when mothers were exposed to eight hours of low oxygen in a 21-hour pregnancy, the likelihood of spinal abnormalities increased sharply in their offspring. Ultimately, it was determined that while high oxygen levels could be harmful to early development, low levels of oxygen could be harmful later in pregnancy.

Although this connection was made, scientists could not figure out exactly how oxygen deprivation occurred. Pregnant women who played sports or lived in high-altitude locations have not experienced a surge of birth defects. Scientists thought that might indicate the interaction was much more subtle or specific to the individual.

Regardless, the scientific community considers these findings to be a breakthrough. With further study, it hopes to be able to come up with recommendations for activities to avoid when women with known genetic defects are pregnant.

It should be interesting to see how these findings impact birth defect lawsuits. While scientists have found a connection between genetic defects and human activity, there is no indication of whether outside environmental factors respond the same way. Suppose it turns out that antidepressant medications or environmental toxins are not solely responsible for birth defects -- rather, suppose the pregnant mother's habits had an influence on whether they caused harm? A pharmaceutical company or manufacturer might argue that the drug or toxin was safe under "normal" circumstances, but the woman who was exposed just happened to engage in too many low-oxygen activities. Had she not done so, there would have been no birth defect. During any lawsuit, both sides might need to employ experts, who would examine the mother's activity and determine exactly what percentage was responsible for the birth defect compared to the medication or toxin. If the mother's activity were 50% or more responsible, in many states she would not be able to collect an award.

Continue reading "Australian Scientists Find Connection Between Nature and Nurture With Congenital Birth Defects" »

The Maryland state senate voted 32 to 14 in favor of banning arsenic in chicken feed. Arsenic -- a toxic metal that has been linked to birth defects -- was used in an additive known as roxarsone, which was intended to prevent disease and make the chickens plumper. Roxarsone was pulled off of the market last July.

The Maryland bill would ban roxarsone, as well as any other arsenic-containing additives, unless the Food and Drug Administration (FDA) completes a review of the drug and finds it to be safe, with no impact on the environment. An exception was made for arsenic medications for sick turkeys. Even so, critics have argued that if the legislation becomes law, it would drive away the poultry industry, which employs 25,000 people.

It is unclear how much of the arsenic in a chicken's system would make it into a person's system through ingestion. In other contexts, when pregnant women are exposed to arsenic, their fetuses are exposed as well. That is because arsenic is able to cross the placenta and enter the fetus, resulting in harm to fetal development and serious deformations. Exposure to high levels of arsenic has also been known to create serious reproductive problems for pregnant women. Women who work or live near metal smelters, locations where arsenic-based fertilizers are used, or toxic waste sites may have an increased risk of miscarriage or stillbirth. Exposure to even low levels of arsenic during a specific point in fetal development can result in birth defects such as spina bifida.

If you live in Maryland and believe that your child's birth defect was due to exposure to arsenic in chicken, you have the option of filing a product liability lawsuit against the chicken producer. To do this, you would need to first determine with certainty that arsenic was the cause and that it did come from the chicken you consumed. Then you would need to determine who produced the chicken -- if you consumed chicken from several different manufacturers, that could be difficult. You would need to have the different types of meat examined, and that is assuming all of the different types could be conveniently located. If you are able to pinpoint the source, however, you could argue that the chicken producer is strictly liable for conditions that led to your child's birth defect. The producer had a duty to produce a food product that was as safe to consume as possible. The producer breached this duty by producing an unreasonably dangerous chicken. The breach caused you injury when you consumed the chicken, and the damage was in the form of your child's birth defect.

Continue reading "Maryland State Senate Bans Arsenic-Based Chicken Feed" »

In what might be described as troubling news with an upside, a University of Michigan study found that doctors were less likely to prescribe medication for African Americans or Latinos than for Caucasians.

The School of Public Health looked at information from 1993 to 2007 in order to determine whether there were any patterns to physicians prescribing antidepressants. The researchers focused on both who received antidepressants and the type of antidepressant prescribed. They found that a physician's decision whether to prescribe was influenced by race, source of payment, whether the physician owned a practice, and geographical region, while the types of antidepressants were influenced by age and source of payment.

Medicare and Medicaid patients were 31% and 38% less likely to be prescribed antidepressants, as opposed to those with private insurance. Physicians with their own practice were 25% less likely to prescribe antidepressants compared to non-owners, and physicians in metropolitan areas were 27% less likely to prescribe antidepressants too all patients with depression, regardless of race. Overall, Caucasians were 1.52 times more likely to be prescribed antidepressants than minorities.

For many researchers, the findings confirmed what they had long suspected. One noted that policy interventions were needed to eliminate unnecessary variations among physicians, improving both physician practice and adherence to guidelines.

At the same time, the discrepancies may have a beneficial side for African American and Latina women who are pregnant. Several studies have linked antidepressants usage with growth problems and birth defects, and even autism. The link is especially strong if the antidepressants were taken during the first trimester. In that sense, minority women who are pregnant may be avoiding a troubling outcome by not taking the medication. On the other hand, physicians have pointed out that the underlying mental health issues may be what causes certain problems such as autism; thus, these problems may be present regardless of the type of antidepressant prescribed.

Continue reading "Researchers Find That Caucasians More Likely to Be Prescribed Antidepressants Than Other Racial Groups" »

A renowned specialist in Australia claims that an inexpensive therapy can cut the rate of babies born with cerebral palsy by one third. Nadia Badawi, professor of cerebral palsy at the Cerebral Palsy Alliance, states that magnesium sulfate -- often known as "Epsom salt" -- produced results in cases where a baby that had gestated for less than 30 weeks was about to be born.

The reduced rate of cerebral palsy was discovered during a Cochrane Review of five clinical studies in 2010. The Review findings were later endorsed by the National Health and Medical Research Council, which determined that magnesium sulfate was most effective in cases where the mother received it intravenously and the premature birth was expected in 24 hours or less. It is believed that the health benefits of magnesium sulfate come from its neuroprotective effect on the brain. By preventing post-hypoxic brain injury by blocking an excess release of glutamate, it prevents damage to both the fetal and the newborn brain.

Despite the positive findings, many Australian hospitals continue to not provide the option of magnesium sulfate treatment. Professor Badawi believes that this was due to a lack of people to supervise the women receiving treatment. She suggests that each hospital consider employing a part-time midwife to oversee the therapy.

So far, not enough women have received magnesium sulfate therapy to determine its overall effectiveness. Another study in progress will determine the effect of magnesium sulfate on babies born at 30 to 34 weeks of gestation. If the results are similar to those already found, Professor Badawi believes that it could amount to 5,000 more babies born without cerebral palsy each year.

More than 600 children in Australia are diagnosed with cerebral palsy each year, with nearly half of cases coming from premature birth. By contrast, more than 8,000 babies and infants here in the United States receive the diagnosis each year. Cerebral palsy has multiple causes, most linked to a brain injury before or after birth. Pre-term cerebral palsy can come from premature birth, low birth weight, or inability of the placenta to provide the fetus with proper nutrients. Cerebral palsy can also come from mistakes made during the birth, such as the physician depriving the baby of oxygen for too long during delivery. Those with cerebral palsy frequently have difficulty controlling their muscle movements or posture. So far, there is no indication that magnesium sulfate therapy has been tried in the United States. However, if the benefits are shown on a wider basis, the therapy could be used all over the world.

Continue reading "Australian Findings Show That Magnesium Sulfate Therapy Can Cut the Rate of Premature Births By One Third" »

A recent study found that pregnant women who inhaled higher levels of certain air pollutants were more likely to have babies with anxiety, depression, and attention deficit disorders.

Published in Environmental Health Perspectives, the study focused on how pollutants called polycyclic aromatic hydrocarbons (PAH) impacted child development. PAHs are created by burning fossil fuels and are commonly found in urban environments, especially as the result of traffic emissions. Researchers from Columbia University's Mailman School of Public Health examined children born to 253 inner-city women between 1999 and 2006. While the women were pregnant, the researcher team measured surrounding PAH concentrations for 48 hours during the second or third trimester, and also took blood samples. The women were also asked to describe their children's behavior, including whether they showed signs of anxiety or depression.

Researchers found that among those exposed to greater levels of PAHs, anxiety and depression symptoms were 45% higher, while problems with attention span were 28% higher. This was the case even if mitigating factors, such as the mother's diet or whether she smoked, were eliminated. Researchers had a few theories as to why this effect existed, such as oxidative stress, or that the chemicals might act as endocrine disrupters, affecting the normal brain signals and impacting brain development.

At the same time, researchers could not prove a causal link, and at least one physician has argued that further testing should be done. There is also a question of whether 253 is a large enough sample size, and to what extent these results could be found in children born in a less urban environment. Nonetheless, many consider this study an important first step to quantifying exactly how smog impacts fetal and child development.

This blog has previously discussed the harmful health effects of smog, and cities' efforts to combat the problem. If your child suffers from depression or anxiety that you believe may be due to exposure to high levels of smog, you might consider filing a toxic tort lawsuit. If the source is from something specific, such as a power plant that burns a lot of coal, then you might file the suit against that particular power plant. If the source is more diffuse, such as traffic from thousands of cars, as well as power plants and miscellaneous sources, you might be better off doing what a watchdog group in Los Angeles did and sue an environmental enforcement agency -- such as the Environmental Protection Agency (EPA) -- to uphold air quality standards. If you chose the second option, you would be suing for what is known as "equitable relief." In court, you can receive one of two different types of relief: "damages" -- a money amount awarded by a jury -- or equitable relief, awarded by a judge. Equitable relief requires the party in the wrong to take a specific action. One of the most common forms of equitable relief is an injunction. If you sued the EPA or a similar agency, you would most likely be seeking an injunction that would force the EPA to perform its duties, which would be to enforce limits on PAHs and other types of air pollution.

Continue reading "New Study Finds That Pregnant Women Exposed to Higher Levels of Smog More Likely to Have Children With Anxiety and Depression" »

A new study finds that not enough is being done by physicians to warn pregnant women about the harmful effects of environmental toxins on their fetuses. The paper, published in the American Journal of Obstetrics & Gynecology, states that this is because reproductive health professionals have received little training in the effects of different toxins and thus cannot effectively counsel pregnant women.

The study also provides detailed information for physicians to give to pregnant women. Many of the dangers have been previously discussed in this blog. For instance, the study provides a warning about mercury, that it can lead to lead lower intelligence and poor language and motor development. The study states that mercury exposure can come from eating some types of fish, contact with quicksilver, and use of skin-lightening creams. Researchers warn that women should follow Environmental Protection Agency (EPA) and state consumption guidelines when it comes to eating fish.

Likewise, pesticide exposure -- which can come simply from eating foods sprayed with pesticide -- can result in problems such as leukemia and growth retardation. Pregnant women are urged to reduce exposure by not using pesticides indoors or outdoors, avoiding chemical fleas and dips, wash all fruits before eating, and to consider buying organic whenever possible.

Hopefully this study will reach physicians everywhere and the information above will become common knowledge. In the meantime, if your child has a birth defect that you believe was caused by mercury exposure, or pesticide exposure, or exposure to BPA while you were pregnant, could you successfully sue your physician for malpractice? A physician has a duty to let patients know of the potential dangers of courses of treatment so that the patient can make an informed decision. However, does the duty to inform extend to a duty to let patients know of every potential danger to them? The answer is unclear -- though some believe that physicians have a duty to know the environment they practice in and inform patients of the specific dangers. Usually, though, duty to inform seems to apply to cases where the physician discusses a specific course of treatment.

Even if there were a clear duty to inform of every major danger, it might not apply if you filed a suit today. That is because the information must be the type that a physician could reasonably obtain. A physician is not responsible for knowing every obscure piece out there. You might argue that before this study, the information existed and the physician could have reasonably acquired it. Since the physician was in a particular field of helping mothers stay healthy, the physician should have stayed apprised of all new information about environmental toxins. You might succeed with this approach, but in all likelihood, you would be more successful once studies like this become more widely known and your physician has less of a defense.

Continue reading "Study Finds That Physicians Are Not Doing Enough to Warn Pregnant Women About Environmental Toxins" »

The Keystone Pipeline has long been fraught with controversy. Intended to transport synthetic crude oil from Alberta, Canada to parts of the United States, the pipeline is expected to stretch all the way to Texas. The latest extension, the Keystone XL pipeline, was initially supposed to be completed in 2012 or 2013. However, environmentalists have criticized the environmental impact studies as inadequate, leading the Obama administration to postpone a decision over whether the Keystone XL extension is in the national interest until 2013. Even so, many communities in the pipeline's path have decided that they have had enough.

The biggest concern about the Keystone XL extension is the possible health effects -- including birth defects. The pipeline is expected to travel over the Ogallala Aquifer, one of the world's largest sources of subterranean water. Providing one-third of the country's groundwater irrigation, the Ogallala Aquifer lies beneath the Great Plains, stretching from South Dakota to central Texas. Many are fearful that contaminants from the Albertan tar sands oil -- which is heavier than conventional crude oil -- will leak into the Ogallala Aquifer and harm an important water source.

Others simply dread the effect of the Keystone XL extension on their own communities. Irma Lee Smith of Port Arthur, Texas, says that she is already "sickened" by living near some of the world's largest refineries without them receiving an estimated 800,000 barrels from the tar sands. Many people from Port Arthur suffer from serious respiratory problems due to the refineries.

The Obama administration will fast track the building of the southern part of the Keystone XL extension. While it might require safety modifications, the administration will also likely, eventually, approve of the rest of the extension. What options would people have then? If years from now, your baby has a birth defect that you believe is due to pollution from the pipeline extension, could you successfully sue for relief?

You might be able to, though most likely as part of a class action lawsuit. Class action lawsuits are common in situations where a massive number of people, spread over a large area, are affected by a specific source. Instead of going through the difficulty and expense of filing their own lawsuits, many people will join an existing lawsuit, which would be led by a representative of the group. There is no set limit on the size of a class action, though the smallest is generally considered to be no less than 40. For the largest class actions, there must be a "commonality," or a common problem harming the group, in order for it to qualify as a class. If you made the case that contaminants from the Keystone XL extension caused your children's birth defect, then you should qualify.

Continue reading "Widespread Concern That the Keystone XL Pipeline Extension Could Cause Health Problems and Birth Defects " »

Birth defects have long been both a personal and a public health concern. Sometimes they can also be political. In addition to the controversy over whether women should be required to view ultrasound images of their fetuses before having an abortion, there is the controversy over whether doctors should be protected from wrongful birth lawsuits if they fail to warn their female patients about possible birth defects.

This blog has discussed the growing number of wrongful birth lawsuits across the country. The plaintiffs in the suits argue that genetic screening has become such an accurate and customary approach, any doctor who fails to perform one, or withholds some of the results, has committed negligence. Those who file wrongful birth lawsuits usually seek a monetary award to pay for the expenses of raising a child with a disability.

Now Kansas is poised to pass a bill that would provide doctors with a legal shield if a wrongful birth lawsuit were filed against them. While deliberate deception about the nature of a child's health is not common, it does happen. Stories include a doctor refusing to perform an ultrasound that would have informed the mother that her fetus had no brain and a doctor refusing to tell a mother that her fetus had no arms. Pro-choice advocates criticize Kansas's actions and call them hypocritical, since Kansas is one of several states to also require ultrasounds prior to an abortion, with the argument that a woman should be "fully informed" before making the decision. Other critics worry that if doctors have a legal shield, they will feel less obligated to provide quality pre-natal care. On the other side, some argue that it is wrong to claim that the birth of any child is wrong or a mistake.

Until there are more programs to help families with children born with birth defects, wrongful death lawsuits will always exist, no matter how many states try to do away with them. If states prohibit wrongful death suits, could that prohibition spread to other medical malpractice suits? Doctors are frequently sued for medical malpractice when they fail to provide information about a course of treatment, or make a preventable error during a delivery. What is the dividing line between suing a doctor for failing to provide you with information about an antidepressant and suing a doctor for failing to provide you with information about your child's development in utero? Couldn't the same people who want to shield doctors from wrongful birth lawsuits argue with other medical malpractice suits: "Your child is born now. You'll just make him feel bad if you sue the doctor for how he turned out"?

Whether they are known as wrongful birth lawsuits or medical malpractice suits, lawsuits against doctors are a way of holding them accountable and giving you compensation for the consequences of your doctor's decisions. "Duty to inform" is a key part of any physician-client relationship, and that extends to informing pregnant women about birth defects.

Continue reading "Kansas Poised to Pass a Bill That Would Shield Physicians from Wrongful Birth Lawsuits" »

At the end of March, the Food and Drug Administration (FDA) will announce whether it intends to ban bisphenol-A (BPA) in food and beverage packaging. BPA has already been banned in Europe and Canada.

Until now, BPA has been used as an internal coating of metal food and beverage cans used to protect the food from direct contact with the can. It is also found in most plastic packaging. Yet more and more studies have shown that BPA is an endocrine disrupter. An endocrine disrupter mimics natural hormones and either causes the body to overreact to the stimulus or respond at inappropriate times. Endocrine disrupters have been linked to cancer, obesity, reproductive disorders, and depression or anxiety. BPA, meanwhile, has been linked to reproductive problems, birth defects, cardiovascular disease, and metabolic disorders.

Over the past month, pressure has been building for the FDA to ban BPA in packaging. Congressman Ed Markey of Massachusetts formally petitioned the U.S. Food and Drug Administration to ban the use BPA -- the first Congressman to do so. Even the American Chemistry Council -- hardly known for its environmental concerns -- petitioned the FDA in December to ban BPA from baby bottles. While evidence is growing that exposure to even small doses of BPA, especially while pregnant, can lead to a range of health problems later in life, the chemical is still widely available. Of those tested for BPA, more than 90% had it in their bloodstream.

It remains to be seen which action the FDA will take -- whether it will pass a complete ban or a modified ban, or none at all. However, with nearly 200 studies establishing BPA's harm to those exposed, it seems clear that something needs to be done to curb the chemical. If your child has a birth defect that you believe may be due to your exposure to BPA, could you successfully sue for relief? It depends on what your intention would be. If you want to sue the manufacturer of the products you use, you would need to determine which products contained BPA and whether those products were responsible for your child's birth defect -- especially given the number of other toxins in the environment. You would argue that the manufacturer had a duty to consumers to create a reasonably safe product, breached that duty by creating an unreasonably dangerous product, that breach caused your injury (through exposure), and the result was your child's birth defect.

Since BPA exposure could lead to health problems in the distant future, it might be difficult to prove that a specific product harmed you, unless you have a long history with that product. Instead, if you want to ensure that BPA is kept out of all product packaging, you might consider suing the FDA to enforce food quality standards. The only problem is that at present, the law still permits BPA in packaging. Hopefully that may soon change.

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