Birth Defect Lawyer Blog

Environmental groups claim that fertilizers and other contaminants from the Mississippi River have created a "dead zone" in the Gulf of Mexico the size of Massachusetts. As a result, the groups are suing the Environmental Protection Agency (EPA) in an effort to stop the pollution.

The environmental groups' goal is to have judges force the EPA to set specific guidelines for state water quality standards, as well as for wastewater treatment, in order to reduce pollution in the Mississippi River Basin. Since the basin stretches from the Rocky Mountains to New York, it includes a lot of agricultural areas. Water from the Mississippi River is carried south through agriculture and industrial states, eventually flowing into Louisiana and the Gulf of Mexico. The water also gathers nitrogen that stimulates excessive algae growth in the dead zone. Algae blooms can be highly toxic.

Environmentalists claim that the Gulf of Mexico has become "the nation's sewer" and that the EPA is not doing enough to clean up the water or prevent it from getting worse. Groups such as the Natural Resources Defense Council and the Gulf Restoration Network filed lawsuits after the EPA failed to take into consideration a petition for stronger wastewater treatment rules in 2007 and rejected a petition for water quality standards in 2008. Currently, the EPA is reviewing the lawsuits.

Herbicides and nitrogen in drinking water have been linked to an increase in birth defects and other health problems. Currently the EPA lists the maximum acceptable level of nitrate as 10 MCL. Beyond that, any infant younger than six months who drinks nitrate-filled water risks becoming seriously ill and dying without proper treatment.

If your child has a birth defect that you believe is due to contaminated drinking water -- whether in the Gulf of Mexico or elsewhere -- you could do what the environmentalists did and sue a regulatory agency to enforce water quality standards. Rather than sue to receive "damages," or a money award, you would be suing for equitable relief -- in this case, an injunction. While most injunctions put a stop to harmful activities, your injunction would compel the agency to take action. You might also try filing a toxic tort lawsuit against those responsible for contaminating the water. If the water is being polluted by one predominant source, such as farmland in a specific location, identifying the problem and filing a suit against the landowners would not be overly difficult. On the other hand, if the water pollution comes from many sources -- such as runoff from several states -- it could be much harder to identify the specific offenders. That is probably why environmental groups chose to focus their lawsuits on the EPA rather than individual polluters. The problem is so widespread and the culprits so many, and so spread out, that the time and expense needed to file lawsuits against them could be a nightmare.

Continue reading "Environmental Groups Sue the EPA Over Pollution from the Mississippi River Basin" »

It appears that not even costume jewelry is safe from toxic chemicals. Throughout the United States, cheap jewelry sold to adults and children contains "alarming" levels of heavy metals including lead, cadmium, nickel, and arsenic. These toxic metals have been linked to severe allergies, learning difficulties, cancer, and birth defects.

The Ecology Center, an environmental nonprofit, tested 99 pieces of jewelry from well-known retailers such as Walmart, Forever 21, Hot Topic, and Burlington Coat Factory. The jewelry came from six states in the Northeast and Midwest. The Ecology Center then published a report finding that 59% of the jewelry pieces tested had a high level of one or more hazardous chemicals. Specifically, (1) 27% of jewelry contained more than 300 ppm lead, the limit for children's products; (2) 10% of jewelry contained more than 100 ppm cadmium; (3) 93% of jewelry contained more than 100 ppm chromium; (4) 30% of jewelry contained more than 100 ppm nickel; (5) 7% of jewelry contained brominated flame retardants; and (6) 12% of jewelry contained chlorine. Arsenic and mercury featured heavily in the jewelry as well.

Jeff Gearhart, an Ecology Center founder, blamed the unsafe levels of toxins on failures of regulation at the federal level. In 1976, Congress passed the Toxic Substances Control Act. Even though the Act failed to effectively regulate several chemicals, it has yet to receive a major update. The Safe Chemicals Act is currently working its way through the U.S. Senate, where it has 15 cosponsors. It remains to be seen when the Senate will hold a vote, or when the House will consider similar legislation.

In the meantime, parents and other individuals concerned about toxins in costume jewels will need to resort to other options. One option is to push environmental regulators to do a better job policing the cheap jewelry industry to the extent possible. Another option would be to file a product liability lawsuit against the jewelry manufacturer. You would argue that the manufacturer had a duty to produce jewelry that was reasonably safe to wear. The manufacturer breached that duty by producing unreasonably dangerous pieces of jewelry. The breach caused your injury (repeated exposure to toxins in the jewelry), and the result was health problems or -- if you were pregnant during exposure -- your child's birth defect. If your suit is successful, you would most likely receive a money award from the jury for medical bills, and pain and suffering. The biggest problem you would encounter is proving that the costume jewelry caused the health problem or birth defect. If you rarely wear cheap jewelry, the jury might be skeptical that it caused your problems. On the other hand, if you always wore cheap jewelry, or shirts laced with cheap pearls and other jewels, you would have a much stronger case.

Continue reading "New Study Finds Toxic Levels of Chemicals Hidden in Costume Jewelry" »

Whether or not to take antidepressants is a controversial issue for a pregnant woman. Studies have shown that certain antidepressants, taken early in pregnancy, can increase the risk of babies being born with birth defects. The most recent one out of the Netherlands does little to calm fears, since it has found that babies whose mothers took antidepressants while pregnant experienced slower head growth, and were more likely to be born early, than other babies.

Throughout the study, the Erasmus Medical Center in Rotterdam tracked nearly 8,000 pregnant women. Researchers conducted ultrasounds during each trimester to assess the babies' growth. While most women in the study did not exhibit many signs depression, 570 appeared depressed but did not take medication, and 99 more took antidepressants. The researchers found that the babies of women who were depressed, but not treated, gained less weight per week in the womb than babies of non-depressed mothers. In addition, the babies' heads grew more slowly. When the mothers received antidepressants, there was no difference in their babies' body growth, but head growth slowed by 0.18 millimeters per week. At birth, these babies' heads were four millimeters smaller than babies of mothers who were not depressed. Researchers noted that four millimeters, while not much, was a "substantial" difference in the head growth of a newborn.

Babies born to mothers taking antidepressants were also born earlier, with a 10% early birth rate, compared with 6% for mothers with untreated depression and 5% for mothers without depression.

Still, researchers and other scientists cautioned that the results did not mean that antidepressants were definitely the cause of the slower head growth and early birth. It was possible that the slower head growth was solely due to the mothers' depression, rather than to the antidepressants themselves. Researchers advised women with depression to consult with their doctors about the risks of antidepressants.

Under tort law, doctors have a duty to inform their patients of all of the risks of a course of treatment. The goal is to allow the patient to make an informed decision. If a doctor fails to provide the patient with information that the doctor knew or should have known, the doctor could be liable for medical malpractice. If your child suffers from learning problems or had a low birth weight, and you believe that this was due to taking prescription medication while pregnant, you could file a suit against your doctor. You would need to show that information about the risks was out there, within reasonable reach of your doctor. As a reasonably responsible member of his or her field, your doctor should stay informed of developments that are part of everyday medical treatment. If your doctor does not do so -- or does, and fails to inform you -- he or she has breached this duty.

Continue reading "Netherlands Study Finds That Babies of Mothers Who Take Antidepressants Have Slower Head Growth" »

Employees at the Orange County Social Services Agency and Sheriff's Department had long feared that their work environment was toxic -- literally. Now new test results of the site appear to confirm their worst fears. Tetrachloroethylene, a toxic chemical used in dry cleaning and for degreasing equipment, was found underneath the building. Breathing it over a long period of time can lead to liver and kidney damage, or cancer. The two-story building houses 550 employees.

The testing was prompted by two lawsuits that blamed toxins around the building for health problems. Originally, in the 1970s and 1980s, the building's land was used to manufacture oil drilling equipment. The office building was constructed later, and in 1993, the Social Services Agency moved in. In 2009, employees on the first floor began to complain of a stale odor. An industrial hygienist was brought in to perform tests, and in August 2011, an air quality test followed. Although the county claimed that the building was safe, employees believed otherwise.

One worker, Luisa Fernandez-Vasquez, began experiencing severe headaches in 2005 and was ultimately diagnosed with multiple myeloma. She retired early and did not make the connection between her illness and the building until learning of the land's former use in 2011. Another worker, Sarah Kirk, gave birth to a son with severe birth defects in 2002. His birth defects included epilepsy and cerebral palsy. Kirk later moved to a different location while still working part time for the county, and gave birth in 2005 to a healthy girl.

Kirk, Fernandez-Vasquez, and other current and former employees believe that the building should be shut down. The county will be conducting additional testing, and a separate method of testing that the plaintiffs prefer will be conducted in mid-March. The previous owners of the land are named as defendants in one lawsuit.

If you have a child with severe birth defects and suspect that it was due to the toxins in your work environment, you could file a lawsuit like the employees in Orange County. To have the best chance at success, you would need to be able to provide strong evidence that toxins around your work site, not from another source, were responsible for the birth defects. This evidence could come from actual site inspections, such as the one the county recently performed, as well as from an already existing paper trail and/or accounts from other people who worked in that environment. From there, you could file a lawsuit against the former landowner for not cleaning up the toxins. You could also file a lawsuit against the current owner if they knew or should have known that there were still toxins at the work site that could harm people long term, but failed to warn employees. Then there is also the option of filing a suit against the government body charged with protecting you from these toxins -- if it was the body's duty to routinely inspect the site and it failed to do so. Or if it did inspect the site, it failed to warn employees of the dangers found.

Continue reading "Contaminants Found On Land Near Orange County, California Office Building That Are Linked to Cancer and Birth Defects" »

This blog recently discussed the federal government's move to permit streamlined applications for mountaintop removal mines, despite many studies showing its harmful effects on local communities. Mountaintop removal mining -- or just "mountaintop mining" -- has polled negatively in Appalachian states. However, there has been little news of community action against the practice -- until now.

The Appalachian Community Health Emergency (ACHE) group has formed to lobby government officials and educate the public about the dangers of mountaintop mining. The group first descended on Washington, D.C. at the end of February to campaign for the government to place a moratorium on mountaintop mining until a federal study and Congressional hearings could be held addressing the mountaintop removal crisis.

Mountaintop mining removes the top layer of a mountain to access the coal beneath. Although the coal it produces accounts for just five to seven percent of coal in the United States, it has been known to cause significant, long-lasting harm to communities -- both by disfiguring the landscape around them and by damaging their health and causing an increase in birth defects. Mountaintop removal releases toxins into the air and waterways, including mercury. Mercury has been linked to health and neurological problems in adults and birth defects in infants.

ACHE has shined a light on these problems. The organization's website features prominently the story of a woman who has had three brain tumors in five years. ACHE also points out that babies born to mothers in mountaintop mining areas have a greater chance of having birth defects than babies born to mothers who smoke -- 26% versus 18%. Babies born in these areas also have a 16% greater likelihood of being underweight at birth. ACHE states that "that all Americans should be able to live in healthy communities." With ACHE's help, people in Appalachian states, at least, are one step closer.

In the meantime, while states and the federal government remain permissive of mountaintop mining, one of your best options for fighting the practice is through a toxic tort lawsuit. If you believe that your baby's birth defect was caused by your exposure to mountaintop removal toxins while you were pregnant, you could sue the coal company for relief. You would need to show that mountaintop removal and these specific toxins were the cause, as opposed to other toxins in the environment. If you lived in a community surrounded by mountaintop mining during your pregnancy, you will have an easier time making your case. On the other hand, if you lived several miles from the nearest mountaintop mine, your case could be harder, and you might have to lean more heavily on scientific assessments showing that the waterways from the mines polluted your water, or that toxins from the mine routinely blew in your direction. Once you can make the argument that mountaintop mining was the cause, you would argue that the coal company owed your community a duty to operate as safely as possible, breached that duty, the breach caused your injury (exposure to toxins), and your damage was your child's birth defect.

Continue reading "New Group Dedicated to Stopping Mountaintop Mining Visits Washington, D.C." »

With mounting evidence that household cleaners unleash toxins that cause cancer and birth defects, people are turning to different solutions. For some, it involves getting back to the basics, using ingredients that their grandparents used to clean the house. For others, it means going forward into the brave new world of genuinely green products.

The Consumer Protection Agency has found that as many as 150 chemicals in household cleaners have been linked to allergies, birth defects, cancer and psychological problems. One popular cleaner alone has seven chemicals linked to cancer. It has left many people wondering what they can do to ensure that cleaning does not become hazardous to their health. As a result, many have come up with creative solutions.

Matthew Pliszka is one such person. A recent college graduate with a chemistry degree, he was moved to take action when he saw the chemical burns on factory workers -- burns from the same types of chemicals used in household cleaners. Pliszka founded Environmentally Sensitive Solutions, a company that produces safe household cleaning products under the labels Simply Safe and NEU Homecare. The cleaners were designed to be Ph neutral so that they would not harm surfaces.

Other "green" cleaner companies are out there as well, such as Sustainable Supply. Started in 2009, Sustainable Supply has experienced growth of 867% in just 2011 alone. Meanwhile, many people simply prefer to bypass store-bought cleansers altogether. One father lets his son help him clean by giving him a spray bottle filled with water and some vinegar. Others routinely use baking soda and mix other natural ingredients to produce cleaning products.

While these are all promising developments, it will be a while before green products become the norm. Meanwhile, we are exposed to household cleaner chemicals on a daily basis, both within and outside of our homes. While many people might "know" that household cleaners can cause cancer and birth defects, many others remain unaware. And even those who technically "know" do not know which products are truly harmful because often, products will not include several ingredients on the label.

Continue reading "More People Trying "Green" Cleaning Products In Order to Avoid Hazardous Chemicals That Cause Cancer and Birth Defects" »

In previous posts, this blog has discussed the practice of "mountaintop removal mining" and its harm to your health. Mountaintop removal mining, or "mountaintop mining," involves a company stripping the top layer from a mountain so that it can reach the materials underneath, such as coal. The top layer gets disposed of in nearby mountain streams, unleashing harmful elements into the air and water, including mercury. Mercury in particular has been linked to health problems and birth defects.

Studies have found that residents of local communities near Appalachian mountaintop mines experienced higher rates of birth defects than residents elsewhere. Since these health effects became known, residents have increasingly expressed their opposition to the practice. Even so, the Obama administration is poised to bring back the streamlined process for obtaining a permit for strip mining. The administration had put a stop to it in 2009 after growing concerns about mountaintop removal.

The U.S. Army Corps of Engineers began reissuing "general" permits, including one known as "Nationwide Permit 21" for surface coal mining. Under the Clean Water Act, general permits are meant to authorize "minor activities that are usually not controversial" and that would have only "minimal cumulative adverse effects" on the surrounding environment. One possible reason for the Obama administration's turnaround is that the permit has been revised to prevent valley fills -- where the excess soil is dumped into a nearby valley -- from being authorized by a streamlined permit. However, the Corps of Engineers may implement a policy waiving the amount of stream that can be buried under mountaintop soil if the Corp of Engineers concludes that the proposal before them would have little impact. Environmentalists warn that if they do so, there would be "insufficient protection" for stream loss.

Twice, a Chief District Court Judge, Joseph R. Goodwin, has issued rulings preventing the Corp of Engineers from issuing streamlined permits. It remains to be seen how the judge will respond to this latest version. Meanwhile, the Obama administration's willingness to bend the standards could make it tougher for anyone affected by mountaintop mining to file a successful lawsuit against the offender. If your child has a birth defect that you believe was caused by exposure to mercury from mountaintop mining while you were pregnant, you would want to obtain relief. To do so, you would need to show that the mining company was acting negligent by dumping soil laden with toxins into the mountain stream. That might be more difficult to argue if the company could show that it obtained a general permit for its actions and complied with all of the requirements. However, you would at least have several studies on your side that mountaintop removal mining is linked to a higher rate of birth defects. You could use it to make the case that the company's actions contributed directly to your child's birth defect.

Continue reading "Obama Administration Allows Streamlined Permits for Mountaintop Mining, Despite Evidence of Birth Defects" »

Back in October, this blog discussed how the weight loss drug Qnexa, manufactured by Vivus, posed an increased risk of birth defects for pregnant women. Qnexa contains topiramate and phentermine, with topiramate being an ingredient in antiepileptic seizure medication. Antiepileptic drugs have been linked to a higher rate of birth defects -- such as cleft palate -- if taken in the first trimester of pregnancy. In October, Vivus had resubmitted an application to the Food and Drug Administration (FDA) after making a modification: use of Qnexa would be limited to those over 55 years of age.

The FDA staff recently turned to an advisory panel to weigh in on whether the benefits of Qnexa outweigh any harmful health effects, such as heart problems or birth defects. Trials revealed that while people who took Qnexa lost more weight than those on a placebo, they also had more health problems, such as memory loss, that could worsen with time. The FDA had previously rejected Vivus's application in 2010 out of concern over rapid heart beat and an increase in birth defects. The FDA advisory panel, the Endocrinologic and Metabolic Drugs Advisory Committee, voted by an overwhelming 20 to 2 margin to recommend approval for the drug.

Although the advisory panel expressed the same concerns that led to the first application's rejection, the panel noted that Qnexa's two main ingredients were already circulating out in the market and could be prescribed off label. One panelist commented that they couldn't "doubt the benefit of weight loss." At the same time, the advisory panel cautioned that post-approval studies be conducted to monitor cardiovascular side effects. While the FDA is not required to follow the recommendations of an advisory panel, it usually does. The FDA is expected to issue its final decision on April 17th.

Even though Qnexa is being limited to women over 55 years old, topiramate is featured in many antiepileptic drugs taken by younger women. If you took antiepileptic medication while pregnant, and your child was born with a birth defect, you could sue the manufacturer and/or your physician for relief. You would sue the manufacturer under product liability theory. You would argue that the drug manufacturer had a duty to create as safe a drug as possible, but breached that duty by creating an unreasonably dangerous drug. This drug could have been made safer without a change in price or effectiveness. It may also have lacked a warning label that adequately spelled out the dangers. The manufacturer's breach caused your injury -- exposure to the harmful effects while pregnant -- and your damage was your child's birth defect.

You could also sue your physician under medical malpractice theory. To be successful, you would need to prove that the physician knew, or should have known, about the dangers of taking antiepileptic medication during the first trimester, and that the physician failed to warn you before prescribing the drug. All physicians have a duty to warn patients about potential problems with treatment so patients can make informed decisions.

Continue reading "FDA Advisory Panel Approves of Qnexa for Weight Loss Usage Despite Evidence That It Causes Birth Defects and Other Health Problems" »

One of the things many car buyers look forward to most when they purchase a new vehicle is that "new car smell." Yet as it turns out, that smell could lead to higher levels of cancer and birth defects.

A new study has found that the new car smell is due to a high concentration of toxic chemicals, including brominated flame retardants, chromium, and lead. As many as 275 chemicals were found in car interiors, including several that were linked to birth defects, cancer, liver problems, and cognitive damage. Researchers arrived at these results after testing the interiors of over 200 cars from the 2011 to 2012 model year. Using a portable X-ray Fluorescence analyzer -- which picks up traces of toxins such as lead, arsenic, and mercury -- researchers tested the seats, arm rests, door trim, steering wheels, door trim, and knobs used to shift gears.

The car rated the safest was the 2012 Honda Civic, which did not have any bromine-based flame retardants and had low levels of heavy metals. The Civic was followed by the 2011 Toyota Prius, the 2011 Honda CR-Z, the 2011 Nissan Cube, the 2012 Acura RDX, the 2012 Acura ZDX, the 2012 Audi S5, the 2011 Smart Coupe, the 2011 Toyota Venza, and the 2011 Smart Passion. Meanwhile, the least healthy cars were the 2011 Mitsubishi Outlander Sport and the 2011 Chrysler 200 SC. The Outlander Sport had traces of both bromine and antimony-based flame retardants, as well as chromium-treated leather and lead in the seats.

Researchers warn that chemical concentrations grow more potent as the temperature rises -- meaning that the toxins present in a car could be even more dangerous on hot days. Nonetheless, they claim that car interiors appear to be growing safer, with VW, Mitsubishi, and Ford among the most-improved manufacturers.

An increasing number of studies have shown that birth defects can be caused by exposure to some of the most common consumer items. In addition to car interiors, household cleaners and even simple clothing (which may contain flame retardants) have also been linked to birth defects. If your child has a birth defect that you believe was due to exposure to chemicals in car seats or household items while in utero, you may want to consider filing a product liability lawsuit against the manufacturer. You would argue that the auto manufacturer had a duty to produce as safe a car as possible. The manufacturer breached that duty by producing a car with an interior that was unreasonably dangerous -- even though the manufacturer could have produced a safer car interior for roughly the same price. As a result of the breach, you would claim that you were injured (exposed to the interior's toxins while pregnant), and your damage was your child's birth defect. Your greatest challenge would be proving causation, that this specific product was the cause, as opposed to household cleaners or pesticides in the air.

Continue reading "Study Finds That "New Car Smell" May Lead to Higher Risk of Cancer, Birth Defects" »

Recently, researchers unveiled a new DNA-based blood test for determining birth defects. The test, which can be offered as early as 10 weeks into the pregnancy, can identify when a fetus has Down syndrome, as well as two chromosome abnormalities: trisomy 18 (Edwards syndrome) and trisomy 13 (Patau syndrome).

Trisomy 18 causes 70% of affected fetuses in the first trimester to be spontaneously lost during pregnancies. Of those that manage to survive to term, half die within a week and only 5% survive their first year. Those who do survive to term suffer from ailments like kidney malformations and structural heart defects. Without a prenatal diagnosis, it is estimated that roughly 1,330 infants with trisomy 18 would be born in the United States each year. Trisomy 13 is not as common as trisomy 18, but is no less serious. Those born with trisomy 13 suffer from several structural defects, including extra digits, abnormal genitalia, deformed feet, and cleft palates. Without the benefit of a prenatal diagnosis, 600 infants with trisomy 13 would probably be born in the U.S. each year. Both trisomy 13 and 18, along with Down syndrome, become more common as maternal age increases. Prior to the latest test, prenatal screening tests for trisomy 18 and trisomy 13 depended upon both biochemical and ultrasound markers.

Researchers from across the United States developed the test and analyzed its results. In 2008, they enrolled 4,500 women at 27 prenatal diagnostic centers throughout the world. Researchers found that the test was able to identify all (59 out of 59) of the trisomy 18 cases, as well as and 91.7% (11 of 12) of the trisomy 13 cases. These results, coupled with an extremely low false positive rate (sometimes as low as 0.1%), suggest that the new test could be highly effective in locating birth defects and allowing couples to plan a course of action.

Both trisomy 13 and 18 are considered to be genetic events. Whether outside factors played a role in the spontaneous formation of the disorders is unknown. However, several birth defects have been linked to external causes, such as pesticides, toxic chemicals stored nearby, polluting practices by a power plant or manufacturer, common household products such as cleaners or light bulbs, and even to prescription drugs.

If you believe that your child's birth defect is linked to one of these outside sources, you could file a toxic tort lawsuit against the offender, or a product liability lawsuit. In both cases, the steps are largely the same. You would argue that the offender had a duty to you and/or the community at large. The offender breached that duty; as a result of the breach, you were injured, and the damage you suffered was your child's birth defect. The only difference is that in a toxic tort lawsuit, you would argue that the breach occurred because the offender was negligent. In a product liability lawsuit, you would argue that even if the offender were not negligent, it still created an unreasonably dangerous product or failed to properly warn of its dangers.

Continue reading "Researchers Develop a New Prenatal Blood Test to Help Pinpoint Certain Birth Defects" »

A study by the University of Rochester Medical Center found that babies with birth defects faced no greater harm when delivered on nights and weekends than babies born during a weekday.

Currently, when a baby is known to have certain defects, the hospital staff might arrange to induce labor so that the baby is born during a weekday. This is done in case the baby requires more testing or surgical intervention. The concern is that reduced staff during nights and weekends could mean that the baby was less likely to receive necessary care in a timely manner. However, researchers in this study found that there was no change in the amount of time the baby stayed at the hospital, the rate at which the baby was admitted to neonatal intensive care units, and the receipt of necessary medications.

Researchers looked at information on 220 infants with common, non-lethal birth defects between 2000 and 2010. These defects included holes in the heart and in the gastrointestinal system. Researchers then looked at data divided between weekday births (Monday through Friday, 7 am to 6 pm) and night/weekend (6 pm to 7 am Monday through Friday, or all day Saturday and Sunday). All of the infants in the study were delivered at the University of Rochester Medical Center, due to its specialized neonatal intensive care unit. While babies born on nights and weekends had to wait longer for corrective surgery, it did not affect the overall amount of time they spent in the hospital.

If your child has a birth defect and you believe that it was worsened due to delivery at night or on a weekend, could you sue successfully for medical malpractice? To be successful, medical malpractice suits must prove that the physician made a medical error that was preventable, and that the physician knew, or should have known that they could have prevented it. Hospitals might be sued as well under the theory of respondeat superior, which means that the employer is liable if the negligent party was acting in the "scope" of employment.

If your physician used reasonable care in the delivery, and if a lighter staff during off hours was the industry norm -- and if the hospital did not have a record of poor performance because of it -- you might have trouble linking the time of delivery to your child's result.

If, however, the physician was overly tired and made mistakes due to the lighter staff, or if the hospital had a record of medical errors overall on nighttimes and weekends, you might be more successful. Having strong evidence in a lawsuit is always of vital importance, especially in this situation, where the case's success may hinge upon medical records.

Continue reading "Study Finds That Babies With Birth Defects Who Are Delivered During Hospital Off Hours Do Not Suffer More Than Babies Born on Weekdays" »

A Louisiana family joins the growing number of families that have filed lawsuits against Zoloft for causing birth defects. Zoloft is a selective serotonin reuptake inhibitor (SSRI) manufactured by Pfizer and designed to treat major depression, obsessive compulsive disorder, and social anxiety disorders. Terry and Nelda Rolling of Louisiana claim that Pfizer failed to provide an adequate warning of Zoloft's risks, and also of concealing, suppressing, and failing to disclose dangers.

The Rollings' child was born with a congenital heart defect. They claim that Pfizer had information as early as 1996 that Zoloft could increase the risk of birth defects if prescribed to a pregnant woman, but failed to provide a proper warning to would-be consumers or physicians. The information only grew between 2002 and 2006 that Zoloft use could harm fetal development. The Rollings claim that if nothing else, Pfizer knew or should have known the risks by 2007, when the New England Journal of Medicine published a study on Zoloft use during pregnancy. The 2007 study showed that Zoloft doubled the risk of septal heart defects.

Zoloft is just one of several SSRIs linked to a higher risk of birth defects. Prozac, Paxil, and Celexa, among others, were also considered to be responsible. Pregnant women who took Zoloft received a warning in 2006 from the Food and Drug Administration that if they continued to take it after 20 weeks, they were six times more likely to give birth to a child with persistent pulmonary hypertension. Since the New England Journal of Medicine's study was published, other studies have confirmed its findings, such as a study out of Sweden, linking SSRIs to persistent pulmonary hypertension.

If you took SSRIs and have a child with a birth defect, how could you file suit against the pharmaceutical company? You could do what the Rollings did and file it under your state's Products Liability Act, if there is one. The Rollings accused Pfizer of violating the warranty of redhibition. All products come with what are called "warranties," or assurances. The warranty of redhibition is specific to Louisiana: it gives consumers the ability to file suit against the manufacturer of a defective product. However, there are other warranties, such as an express warranty, where the merchant makes a stated guarantee about the product, and implied warranties. Implied warranties include the warranty of merchantability, which states that the product must reasonably conform to the buyer's expectations. Breach of warranty tends to used in contract claims rather than a tort claim, but many who file product liability lawsuits include breach of warranty.

Otherwise, you would file a lawsuit against the SSRI manufacturer under strict liability theory. You would claim that the manufacturer had a duty to produce as safe a product as possible, but the manufacturer breached that duty by creating a product that was not only unreasonably dangerous, but also failed to provide a proper warning. As a result of the breach, you were injured (took SSRIs while pregnant), and the damage was your child's birth defect.

Continue reading "Louisiana Family Becomes the Latest to Sue Zoloft Over Birth Defects" »

Not long ago, this blog discussed findings that showed people with childhood cancer were not substantially more likely to have babies with birth defects. Now a more recent study has found that women who undergo chemotherapy treatment while pregnant -- at least after the initial 12 weeks -- may not be at a greater risk of having a child with birth defects.

While it is known that chemotherapy during the first 12 weeks of gestation increases the chance of birth defects, researchers from the Czech Republic, the Netherlands, and Belgium sought to determine whether it had an effect in the later months. They looked at the medical records and tested children whose mothers had undergone three or four rounds of chemotherapy while pregnant. The children were tested several times: once at birth, once at 18 months, and then once every few years until the child turned 18 years old. What researchers found was that the children had no higher risk of general health problems -- including heart, hearing or nervous system disorders -- than children whose mothers had not undergone chemotherapy.

Researchers questioned the idea that pregnant women undergoing chemotherapy should have early induced births. They emphasized that it was important for the baby to remain within the mother as long as possible. Many developmental problems suffered by babies whose mothers underwent chemotherapy may have been due to a too-early birth. That said, researchers cautioned that the findings did not mean chemotherapy was completely safe. The baby would need to be monitored with extra ultrasounds to ensure that it was developing properly.

All expectant mothers hope that their births are trouble-free and that their children develop normally. Cancer and chemotherapy are things no pregnant woman wants to face. Having a child with birth defects would only magnify the painful experience. If you were pregnant while having chemotherapy and your child were born with a birth defect, what would you do? Is it the sort of situation where you could sue someone for relief?

Perhaps if it were a situation where your doctor failed to inform you about all of the consequences of treatment before you agreed to undergo chemotherapy. Physicians have a duty to inform patients about the potential dangers of treatment so that patients know the risks before deciding whether or not to undergo treatment. If your physician knew or had reason to know that chemotherapy (during the first trimester, at least) could result in birth defects, but failed to warn you, then your physician would be guilty of negligence. You could sue your physician for medical malpractice, arguing that had you been fully informed, you might have sought other treatment options, if any were available.

Continue reading "Research Shows That Pregnant Women Who Undergo Chemotherapy in the Second Trimester Are Not More Likely to Have Babies With Birth Defects" »

Leaf blowers have become an ever-more-constant presence over the years -- not just in suburban neighborhoods, but also in urban spaces. Their noise is unmistakable, as is the cloud of dust that follows in their wake. But can leaf blower use lead to long-term health problems, as well as birth defects?

Yes, critics say. The pollution from leaf blowers -- both noise and air pollution -- can lead to very real health problems. The noise of these machines, which frequently exceeds the 60 decibel limit prescribed by the Environmental Protection Agency (EPA), can cause health problems like stress, hypertension, interrupted sleep, hearing loss, and depressed immune system.

Air pollution caused by leaf blowing can be even more damaging. Some brands of leaf blowers warn: "The engine exhaust from this product contains chemicals known to cause cancer, birth defects or other reproductive harm." The EPA Air Quality Resources Board in California found that one leaf blower engine produces the same amount of pollution as 80 cars each driven 12,500 each year. In addition to exhaust, leaf blowers also stir up molds and chemicals that would have otherwise settled into the earth. A person walking through a leaf blower cloud may breath in traces of pesticides, mold, animal fecal matter, and dust particles. Dust particles may contain elements linked to birth defects, including mercury, arsenic, and nickel.

While more than 400 cities across the United States have banned leaf blowers, in too many other communities, the health hazard is not taken seriously. Leaf blowers are permitted to operate up to 14 hours each day, with no restrictions on how the blowers are used that would preserve the health of residents.

If your child has a birth defect that you believe may be linked to leaf blower use, you have options. You could sue the company that uses them, the manufacturer that produces them, and/or even the entity charged with preserving public health. For the company or companies operating the blowers, you could claim that they were negligent in that they had a duty to operate as safely as possible, but breached that duty by allowing toxic clouds of dust to be blown into the air within 50 feet of residents' homes. You were injured by the breach -- exposed to the toxins while pregnant -- and you suffered damage in the form of your child's birth defect. You might have trouble establishing that the companies had a duty to prevent toxic pollutants if no restrictions were placed on the type of blower or where a blower could operate. The company might argue that it is simply the nature of blowing that dust gets everywhere.

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British researchers claim that women with diabetes face quadruple the risk of having a child with birth defects compared to women without diabetes. The study focused on more than 400,000 pregnant women in northeastern England.

Of the 401,149 women who became pregnant between 1996 and 2008, 1,677 of them had diabetes. Researchers found that the risk of babies being born with spina bifida or congenital heart disease increased from 19 in every 1,000 births to 72 in every 1,000 births when the mother had diabetes. The reason is believed to be due to sugar levels in the blood at the point of conception -- women with lower blood sugar levels (an HbA1c levelbelow 6.1%) are more likely to have a healthy child. Regardless of whether a diabetic is Type 1 (which is treated with daily insulin injections) or Type 2 (which generally develops in adulthood and is often associated with diet), a diabetic has greater trouble controlling the amount of sugar in the blood. The first four to six weeks of gestation are often critical, and sugar levels can impact it. Researchers note, however, that if women with diabetes seek medical care ahead of time, they might be able to bring their sugar amount down to an acceptable level before getting pregnant.

In Type 1 diabetes, a person's immune system, which when functioning properly fights harmful viruses and bacteria, destroys the insulin-producing cells in the pancreas by mistake. Why this happens is still unknown, but it may be linked to heredity or certain viruses. Type 2 diabetes, as stated above, usually sets in later in life and is often linked to weight and diet. Because the cause of diabetes appears linked to genetics or lifestyle, it would be difficult to prove that your diabetes was associated with, for instance, environmental pollution or prescription medication. Therefore, if you are an American with diabetes and your child has a birth defect, you would likely not be successful if you filed a toxic tort suit against a power plant, claiming that it caused your diabetes and thus your child's birth defect. The connection just isn't there.

However, you don't need to prove a link between environmental pollution and diabetes to make the case that environmental pollution caused your child's birth defect. Many studies have provided strong evidence that specific pollution sources -- such as power plants, toxic waste sites, certain manufacturing plants, and coal mines -- are connected to a rise in the number and type of birth defects. If you live in an area with one of these sources of pollution, you could potentially make the case that it caused your child's birth defect. You could then sue the source for negligence, stating that because the offender did not take reasonable care and follow applicable regulations, it released harmful amounts of pollution. You absorbed this pollution while pregnant and it led to your child's birth defect.

Continue reading "Study Finds That Pregnant Women With Diabetes Are Four Times More Likely to Have Babies With Birth Defects" »