Birth Defect Lawyer Blog

Environmental and public health groups in Los Angeles have filed suit against the Environmental Protection Agency (EPA) to reduce the amount of smog in the region. The groups claim that the EPA had a duty to require a clean-up plan for cities that do not meet smog standards. Despite the fact that Los Angeles does not meet the "one-hour standard" for ozone pollution, the EPA has not taken any action.

The federal Clean Air Act established the one-hour standard to measure the amount of ozone pollution (a major contributor to smog) in the air. For the amount to be acceptable, there must be less than .12 parts per million (ppm) of ozone in the air during one hour. The amount in the air around Los Angeles is much higher: .143 ppm. A 1990 amendment to the Clean Air Act required the EPA to make a determination by 2011 as to which cities met or failed the test. If a city failed, state and regional authorities needed to implement a clean-up plan. Yet even though Los Angeles has failed the standard, the EPA has yet to make any determination.

A plan to reduce ozone would require tougher limits from cars, trucks, and other sources -- potentially very difficult in car-dominant Los Angeles. The city remains the smoggiest in the United States. Scientific studies show that smog inflames the respiratory system, leading to asthma attacks and premature deaths. Already, more than one million adults and 300,000 children in Los Angeles suffer from asthma. One study found that asthma deaths were double the amount of car crash deaths each year. Unhealthy levels of smog have also been linked to an increase in the number of babies born with serious heart defects.

If you suffer from serious respiratory problems, or your baby has a heart defect, that you believe may be linked to smog, you should consider taking action. If the smog comes from an identifiable source, such as a nearby power plant, you could file a toxic tort lawsuit. You would claim that the plant owners acted negligently and that the negligence resulted in your serious health problems or those of your child. However, if the source is more diffuse, such as thousands of cars upon the road, your path to relief may not be so clear. Your best option may be the one chosen by the environmental and public health groups: sue the ones responsible for enforcing pollution limits.

Unlike the other groups, there would be no question that you had standing. "Standing" is a basic requirement for any lawsuit to move forward. To have standing, the one suing must have been injured by the party being sued; there must be a connection between the behavior of the sued party and the injury; and a favorable court decision would allow you to obtain relief. Since environmental and public health groups are usually not the ones who suffer the injury, they may have trouble obtaining standing. There are some exceptions that allow "third-party standing," such as if the organizations represent people who would have standing to sue in their own right.

Continue reading "Los Angeles Environmental and Public Health Groups Sue EPA to Control Smog" »

A new study has found that exposure to "passive smoking," or secondhand smoke, can result in birth defects. Men who are regularly exposed to secondhand smoke risk having genetic damage done to their sperm cells, which in turn lead to more miscarriages and babies born with birth defects.

The study, published in the Proceedings of the National Academy of Sciences, looked at the effect of secondhand smoke on laboratory mice. It found that mice exposed to "sidestream smoke" suffered an increase in the number of DNA mutations in "germ" cells, the cells responsible for making sperm. Tobacco smoke contains 4,000 chemicals, of which at least 60 are known to cause cancer. The findings join those of another study that examined the effect of secondhand smoke on 1,500 teenagers in the United States. That study found that exposure to secondhand smoke in early childhood could result in hearing problems later in life. The study's authors stated that it was the first time secondhand smoke has been directly linked to hearing loss. Researchers from both studies hope that it will lead to changes in the way that secondhand smoke is dealt with.

In the U.S., several states have made great efforts to curb secondhand smoking. New York and California in particular have banned secondhand smoke in a number of public places. However, many places remain where people can be exposed to secondhand smoke -- especially in the home. When secondhand smoke causes health problems, it can be difficult to know how to fight it. Sometimes the smoke may drift through the walls from a location where smoking is perfectly legal. If you suffer from health problems from secondhand smoke, or believe that your baby's birth defect may result from it, you may want to see whether the smoke violates any laws. If so, you could sue the smoker for negligence. You could claim that the smoker owed a duty of care to his or her neighbors that he or she violated by smoking in violation of the law. These actions were the actual or proximate cause of your health problems or child's birth defect, and as a result, you have suffered damage.

The challenge would be to prove that the secondhand smoke caused your problems. That may be easier if you are suing for your health problems than if you are suing over your baby's birth defect. There are many known problems associated with secondhand smoke, including heart disease, lung cancer, and asthma. Studies linking secondhand smoke to birth defects tend to be less frequent, and open up questions such as how the smoke affected fetus. Was the mother the one most exposed, or the father? If the father, maybe his sperm was affected by smoke many years before the current smoking problem. If you feel confident that secondhand smoke is the cause of the problem, and you can provide evidence linking it to your child's birth defect, you can proceed and make your claim.

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 secondhand smoke, please contact us today at (800) 400-8182 or submit our online Contact Us form.

A study in China has found that pregnant women exposed to coal and pesticides are four times more likely to have children with serious birth defects than women who are not exposed. The study looked at 80 newborn babies and aborted fetuses with brain and spinal cord defects. Whereas previously, these birth defects have been linked to a lack of folic acid, maternal obesity, and diabetes, only now are they starting to be linked to environmental causes.

The study looked at placentas from women in the northern Shanxi province, where neural tube defects occur in 14 out of every 1,000 births. In the rural counties of Shanxi, many residents use coal for cooking and heating their homes. The placentas of 80 babies or fetuses were compared with the placentas of 50 babies without these defects. It found that the placentas with the birth defects had high levels of polycyclic aromatic hydrocarbons (PAHs), which come from inhaling smoke from burning coal, as well as synthetic pesticides such as DDT. Women whose placentas had high levels of PAH were 4.5 times more likely to have babies with birth defects, while those with above-average levels of pesticides were three times more likely.

While the sampling is not large, it follows another study that looked at the harmful effects of inhaling coal smoke. This study also focused on the Shanxi province, looking at the homes of 610 infants with neural tube defects and 837 healthy infants. Researchers found that 90% of infants with defects lived in a house where coal was used, compared to 80% of infants without defects. The study's authors claimed that this was a sign of the unhealthiness of coal, and that it should be replaced by other fuel sources.

By comparison, the rate of neural tube defects in the United States is one in 1,000. This includes spina bifida, where the embryonic neural tube does not close completely. Though the two studies focused on China, they correspond with studies done in the U.S. about the harm of exposure to mercury from burning coal and harmful toxins from mountaintop mining. While much of the coal exposure in the Chinese studies came from household use, often people are exposed to coal and its emissions involuntarily. If you live in the U.S. and have a child with a birth defect that you think is linked to coal emissions from a power plant, you may want to file a toxic tort lawsuit. First you would need to locate the source of the coal emissions. Then you would need to show that this plant owed you a duty of care. The plant breached that duty by allowing unsafe levels of coal emissions into the community; the unsafe emissions caused you harm, and now you have suffered damage.

The plant owner might argue that it does not owe you a duty of care because you are not a "foreseeable plaintiff." A foreseeable plaintiff is just as it sounds: a person whom it is foreseeable would be affected by the other party's wrongdoing. If you live right near a power plant, it is highly likely that you would be a foreseeable plaintiff. If, on the other hand, you live one or two towns over, it might be more difficult to prove the connection between coal emissions and your child's birth defect. The farther away a party lives from the source of the harm, the harder it is to make the case that the source of the harm owes that party a duty. Before you file for a toxic tort lawsuit, be certain that you can make a strong connection between the source of the harm and your injury.

Continue reading "Chinese Study Finds Correlation Between Coal Inhalation and Birth Defects" »

Two new studies published in the Archives of General Psychiatry suggest that autism may not be linked to genetics as much as previously thought. They suggested that environmental factors might play a greater role.

Neither study concerned itself with environmental factors such as pollution or other environmental toxins. Rather, they looked at factors such as whether the mother had previous low-weight births, multiple births, the mother's age, whether the mother took any prescription antidepressants, and whether the mother suffered from any infections during pregnancy.

One study analyzed 192 pairs of identical or fraternal twins, where at least one twin had a neurodevelopmental disorder. Scientists found that autism occurred in 77% of identical twin boys and 50% in identical twin girls. It occurred in 31% of fraternal twin boys and 36% of fraternal twin girls. The scientists further found that while genetics accounted for 38% of these cases, environmental factors caused 58%.

The second study examined autistic children who had been born to mothers who took antidepressants. Of the 298 children studied, 6.7% of their mothers had taken a serotonin reuptake inhibitor (SSRI) while pregnant. The second study also looked at a randomly selected group of 1,507 children, of which 3.3% were found to have mothers who took SSRIs. Scientists concluded that exposure to SSRIs during the first trimester of pregnancy led to a modest increase in the risk of a child developing autism. However, some scientists noted that the mother's depression may be the result of an underlying biological condition that could, by itself, cause autism.

If your child has autism that you believe could be due to the antidepressants you took while pregnant, it is important to ensure that you have good evidence to support your case before taking action. Autism is a condition that is still far from understood, with many possible causes. As the one study shows, it is possible that an infection during pregnancy, or the mother's age, could have been a contributing factor. As more tests on autism are conducted, scientists may find more cases where autism occurs even if there were no prenatal issues. However, if you have ruled out other factors and have strong reason to believe that antidepressants are responsible, you could file a products liability suit against the manufacturer. You would not only have to prove that antidepressants cause autism, but that your specific antidepressant (such as Paxil) caused your child's autism. For that, you might try to find studies that point out the health risks of your antidepressant. You might also have an expert witness testify at the trial, as long as his testimony meets the Daubert factors: (1) the testimony is based on sufficient facts and data; (2) the testimony is the product of reliable principles and methods; and (3) the witness has applied the principles and methods reliably to the facts of the case.

Continue reading "Autism May be Linked to Fetal Exposure to Antidepressants, Other Environmental Factors" »

A new study reports that when adult female mice were placed on a calorie-restricted diet, they had fewer health problems associated with age and produced fewer babies with birth defects. The study was conducted by the Massachusetts General Hospital (MGH) and published in the Proceedings in the National Academy of Sciences USA. It lends support to studies that showed the health benefits of calorie restriction in humans.

The MGH followed two groups of female mice from young adulthood (three months) to one year, when egg quality would normally have deteriorated. One group was not restricted in the number of calories the mice could consume, while the other was put on a calorie-restricted diet for seven months, only being allowed to eat freely in the final month. The non-restricted mice showed the usual age-related decline in the quality of the eggs, while the eggs of restricted mice tended to resemble the healthy eggs of females in the prime of reproductive life.

Aging in the egg cells was attributed to changes in the distribution of mitochondria throughout the cytoplasm -- subcellular structures that provided cellular energy. In the eggs of non-restricted mice, mitochondria were aggregated into clumps, but not in the eggs of calorie-restricted mice. MGH investigators are still trying to determine the mechanism in calorie-restricted diets that accounts for the change. The findings correspond with other studies done on humans showing the health benefits of restricted calories, including lower cholesterol and better cardiovascular health. It remains to be seen whether human eggs would receive the same benefit of a restricted diet as mouse eggs. In mouse eggs, the restricted diet has produced fewer instances of chromosome defects, including a missing, or extra, set of chromosomes.

Another unknown is to what extent human females would need to restrict their calories to produce this benefit. If pregnant women could do so safely, the instances of harmful birth defects could be lowered significantly. The one note of caution is that it would only eliminate one potential source of birth defects. Other potential sources of birth defects include environmental pollution (including chemicals in common household products), and food additives such as high-fructose corn syrup. Those who eat a restricted-calorie diet could still be consuming food containing harmful additives without realizing it.

If you are on a low-fat, calorie-restricted diet, yet gave birth to a child with a birth defect, you may want to consider your options. Could there be another source of the birth defect, such as genetics, chemicals in the environment, or certain products you consume? If you are able to confidently rule out genetics, and feel reasonably certain that one of the other two factors is the true cause of the birth defect, you may want to consider a toxic tort or products liability lawsuit. Both are suits in tort, which means that you would be suing for "damages" (monetary relief) or, depending upon the situation, an injunction. In both cases here, you could claim that the manufacturer was negligent, that it owed you a duty of care to behave reasonably, that it breached this duty by failing to act reasonably, that this breach was the actual or proximate cause of your harm, and that you received damage in the form of your child's birth defect. You could also claim strict liability, stating that the manufacturer owed you a duty, and even though the manufacturer did not act negligent, the manufacturer still breached the duty by creating an unsafe product. That unsafe product caused you harm, resulting in your child's birth defect.

Continue reading "New Study Using Mice Finds That Calorie Restriction May Prevent Birth Defects" »

The Environmental Protection Agency has issued new standards for power plants in 28 states. The regulations would take effect in 2012 and are expected to reduce emissions of compounds that cause soot, smog, and acid rain. EPA officials believe that they will prevent 34,000 premature deaths, 15,000 nonfatal heart attacks, and new cases of respiratory ailments each year.

The new Cross-State Pollution Rule rewrites a 2005 regulation issued by the Bush administration and later invalidated in 2008. It toughens the acid rain program that was part of amendments to the Clean Air Act in 1990. The rule would put a curb on pollutants entering forests, farms, and bodies of water across the United States. Only North and South Dakota, Delaware, and the six New England states would be exempt.

Critics complain that the rule would harm power companies and consumers unnecessarily. An industry-financed study found that it would cost tens of thousands of jobs and cause energy costs to rise by 20% in certain parts of the country. Yet the Clean Energy Group, a coalition of power companies, claims that the industry has anticipated new regulations for three or four years. Most have the equipment and are well-positioned to comply; only a small group of the oldest and dirtiest plants would be shut down. Furthermore, supporters claim that the costs would be offset by money saved that would otherwise be spent on health care.

Environmental pollution caused by power plants has been linked to birth defects. This blog has previously discussed the effects of mercury on the health of the fetus. Sulfur dioxide -- which would be regulated under the new rule -- has been linked to a slight reduction in birth weight in animals, but so far no human studies have been conducted. Sulfur dioxide exposure can, however, cause serious respiratory problems. Several studies have found a link to lung, stomach, and brain cancer.

If you suffer from health problems, or your baby has a birth defect, that you believe was caused by power plant emissions, you could file a toxic tort lawsuit against the power company. You would try to prove that the power company acted negligently, and as a result of the negligence, you and/or your baby suffered injury. For relief, you could seek either "damages" (monetary compensation) or an injunction. An injunction is a form of equitable relief, meaning that the decision to grant or deny one rests with the judge instead of a jury. By contrast, the amount of damages is decided by a jury. An injunction can be sought to force a defendant to take action, but is more frequently used to prevent the defendant from taking action. Here, you would try to prevent the power plant from being able to produce any more harmful emissions until it met safety regulations.

Continue reading "EPA Issues New Standards for Power Plant Pollution" »

In May, this blog discussed a disturbing new study linking cell phone use to birth defects and cancer. Now a new review of another major study questions whether that link exists. A review conducted by international researchers, published in the journal of Environmental Health Perspectives, found that the study was flawed. It concludes: "[A]lthough there remains some uncertainty, the trend in the accumulating evidence is increasingly against the hypothesis that mobile phone use can cause brain tumors in adults."

The review focused on an international decade-long study that examined 5,000 patients with certain types of brain cancer. The researchers found several inconsistencies in the way that data of cell phone use was gathered and analyzed. Two problems in particular resulted from the different interviewing methods in various countries and the reliance on people's memories of their pattern of cell phone usage. The researchers noted that the findings are in line with a series of studies over the past 12 years that have found no direct link between cell phone use and cancer.

The new review does not necessarily disprove the results of the study conducted by scientists working for the Environmental Health Trust. While the reviewed study focused on humans and relied on their memories, the study that was presented in Turkey focused on effects of cell phone radiation on animals. The review also does not touch upon the possibility that cell phone radiation can lead to birth defects or changes in DNA. That does not mean that the Environmental Health Trust study is more accurate, just that the debate about whether cell phones cause cancer and birth defects is far from over.

Nonetheless, because of studies like this, those who believe that their baby's birth defect is linked to cell phone radiation may have a more difficult time obtaining relief. Those who believe that their cell phones are dangerously defective normally have the option of filing a products liability lawsuit. Once you have decided to sue, you would need to prove that the dangerous product caused your child's birth defect; the product could have been made dangerous by the manufacturer's negligence, or it might have been dangerously defective even without negligent behavior. If the product is dangerously defective even if the manufacturer used reasonable care, the manufacturer is strictly liable. A dangerously defective product would be one that was flawed on the assembly line (so one cell phone could be unusually dangerous while the others were safe), given a dangerous design (so all of the cell phones were dangerous), or included an inadequate warning label. For a warning label to be adequate, it would need to provide instructions or warnings that allow the user to avoid certain foreseeable risks. The warning label should be in a form that would catch the user's eye, have content that is clear and understandable, and should provide a reasonable assessment of the danger.

In the case of cell phone radiation, you would most likely claim that your phone was either dangerous by design or that it had an inadequate warning label. Yet because of the recent review and other studies that cast doubt on the link between cell phones and health problems, you might have a more difficult time making your case. Even so, until cell phone usage is found conclusively not to cause cancer and birth defects, you can always file a claim if you are reasonably certain that cell phone radiation is the cause of your health problem.

Continue reading "Review of Study Contradicts Findings That Cell Phones Cause Brain Cancer" »

In April, this blog discussed the potential risks of taking antidepressants while pregnant. Now a recent study has found a possible link between two antidepressants and a small risk of birth defects. The new analysis, based on national data from Finland, found that women taking fluoxtine (Prozac) and paroxetine (Paxil) were more likely to give birth to babies with heart defects.

The study involved collecting data from 635,583 births that took place between 1996 and 2006. It found that mothers who took Prozac during the early pregnancy months were more likely to give birth to infants with isolated ventricular septal defects, where a hole exists between the left and right sides of the heart. By contrast, mothers who took Paxil during the early pregnancy months were more likely to give birth to infants with right ventricular outflow tract defects, which impact the flow of blood from the right chambers to the rest of the body. Of 10,000 babies born to mothers who did not take antidepressants, only seven had right ventricular outflow tract defects, compared to 31 babies of 10,000 born to mothers taking Paxil. In the case of Prozac, 49 babies out of 10,000 born to mothers who did not take antidepressants had isolated ventricular septal defects, compared to 105 out of 10,000 babies born to mothers who took Prozac.

The study's authors caution that the effect is small and that the study does not establish a direct link between taking the antidepressants and birth defects. It is unknown what effect untreated depression can have on fetal development; there may be situations when it is safer for a woman with depression to remain on antidepressants during pregnancy. Even so, one of the study's authors cautioned that fluoxtine, paroxetine, and similar antidepressants "should only be used during pregnancy when clearly indicated." The study's findings cohere with a study in the United States, which found that babies born to mothers who took Wellbutrin (bupropion) had double the risk of heart defects.

If your baby was born with a heart defect that you think may be linked to Paxil or Prozac usage, you have the option of filing a products liability tort lawsuit and possibly a medical malpractice suit. For products liability, you would need to show that the manufacturer was guilty of negligence and/or strict liability because it created a product that was unnecessarily dangerous or lacked an adequate warning label. In order for the jury to find in favor of negligence, you would need to show that the manufacturer did not act with reasonable care that met industry standards, and that this lack of care resulted in a more dangerous product that caused your baby's birth defect. For strict liability, you would need to show that the product was unnecessarily dangerous -- that it could have been designed to be safer without losing its effectiveness or becoming prohibitively expensive. Because the product was unnecessarily dangerous, your baby had a birth defect. The difficulty with a lawsuit is that as the recent study shows, the occurrence of birth defects is relatively minor. The manufacturer could use that as evidence that the antidepressant was not an unsafe product and could not be designed to be safer.

You might also succeed in suing your doctor for medical malpractice if you could prove that he or she acted negligent by not warning you about the dangers of taking antidepressants while pregnant. Part of a doctor's duty is a duty to warn, so that the patient can make fully informed decision about a course of treatment.

Continue reading "Study Finds That Pregnant Women Who Take Paxil or Prozac Have a Slightly Higher Risk of Birth Defects" »

While this blog has discussed the risk that nail salon chemicals pose to the workers' health, risks for the client should not be overlooked. Recent articles have pointed to the ways in which nail polish phthalates and other salon chemicals can damage the health of customers.

One article discusses the dangers posed to clients who regularly come to salons for treatments ranging from getting their nails done to having their hair straightened. Even if they do not have nail polish applied directly to the skin, but choose acrylic nails for style, they may be exposed to harmful levels of toluene, ethyl methacrylate, and dibutyl phthalate. Dibutyl phthalate is a plasticizer that is meant to make nail polish flexible and resistant to chipping. However, it can be absorbed into the skin and even harm fetal development. While the American Chemistry Counsel, a trade group representing American chemical companies, insists that in 2008, the FDA found insufficient evidence of a link between phthalates and health problems, several major producers of nail polish began eliminating dibutyl phthalates from nail polish as early as 2006. Still, in many places, it remains a concern.

The article also warns of the dangers of exposure to hair treatment chemicals. Hair straightening treatments such as the Brazilian Blowout contain concentrations of chemicals such as formaldehyde. Too many salons fail to use proper ventilation, harming workers and customers alike.

The Environmental Working Group has noted that dibutyl phthalate has been linked to a variety of birth defects, mainly in males. Male lab animals were born with damaged testes, prostates, and penises. Similar reproductive damage in human males has been connected to phthalates. Exposure to formaldehyde has been found to increase the risk of spontaneous abortion and to result in both major and minor birth defects.

If you believe that your child's birth defect may be the result of exposure to phthalates in nail polish or to formaldehyde, you have the option to file a toxic tort lawsuit. In a toxic tort lawsuit, you would try to prove that the chemicals you were exposed to were unreasonably dangerous, resulting in damage to your fetus's health, and that you deserve monetary compensation or, if applicable, an injunction. First, you would need to be reasonably certain that dibutyl phthalates and/or formaldehyde from the salon were the cause of your child's birth defect. That may be easier to prove if you were a salon employee, exposed every day to these chemicals. However, if you were a customer, you might have a more solid case if you were able to show that you went to the salon regularly and were not exposed to other harmful chemicals in your daily life.

Continue reading "Chemicals in Salons Pose Health Risk to Customers" »

This blog has looked at the devastating effects of the Japanese nuclear disaster. But could a similar event happen in the United States? The evidence provides reason for concern.

As a result of the 9.0 earthquake on March 11, 2011, nuclear reactors of a Fukashima power plant were damaged. The reactors' cooling system did not work, which lead to partial meltdowns of three of the six units. This led to explosions, radiation leaks, and mass evacuations of the area. Radioactive gas emissions traveled as far as South Carolina and Florida. There is fear of the long-term effects of contaminated air, soil, and food. The Fukashima power plant, first commissioned in 1971, is the oldest nuclear plant in Japan. Its cooling system was a boiling water system designed by General Electric. For several years, experts have questioned the safety of this model.

Now attention turns to the 23 similar reactors in the United States. Some worry that plants such as the Edwin Hatch plant in Georgia, could experience a similar disaster under the "right" circumstances. Yet others such as Terry Pickens, director of nuclear regulatory policy at Xcel Energy, Inc., argue that American nuclear power plants are different from the plants in Japan. There were no "cookie-cutter" reactors like those in Japan because utilities back then hired their own engineering firms and architects to create custom designs. Currently, the 23 reactors are being operated by 11 different companies.

Even if the similar design of nuclear reactors does not pose a problem, many fear that age could be a problem by itself. They criticize the United States for failing to act while countries such as Germany, Italy, and Switzerland look to end their nuclear power programs and replace them with clean, renewable energy. Plants were found to have failed cables, busted seals, broken nozzles, corroded metals, rusty underground pipes, and more. Any of these, the critics argue, could heighten the risk of disaster.

Radiation has caused numerous health problems and has been linked to birth defects. Fetal development in the first trimester is especially vulnerable. Radiation can lead to mutations in the DNA, which can reduce height and impair brain development. Around 45 groups have called on the Nuclear Regulatory Commission to suspend licensing of 21 proposed nuclear reactor projects and conduct a thorough examination of the U.S. nuclear plants.

Continue reading "Japanese Nuclear Disaster Could Be Repeated in the United States" »

Those who live in Appalachian counties with mountaintop removal coal mining may be more at risk of having babies with birth defects. A study published in the peer-reviewed Environmental Research suggested that the incidental effects of mountaintop removal, such as mercury, lead, and arsenic contamination in the air and water, could pose risks to fetal development.

The study examined 1.9 million birth records in Kentucky, West Virginia, Tennessee, and Virginia from 1996 to 2003. The number of reported birth defects in mountaintop removal counties was compared to those in non-mountaintop removal counties. Counties with mountaintop removal were more likely to have evidence of birth defects such as cleft lip, spina bifida, malformed hearts and genitals, circulatory and respiratory ailments, and diaphragmatic hernia. The rate was 235 per 10,000 live births in these counties, compared to 144 per 10,000 live births without mountaintop mining. Counties with mountaintop removal suffered from contaminants released by massive explosions, disturbance in the soil and water, and the production of toxic slurry from washing coal.

The study authors did not blame mountaintop removal directly. However, they noted that previous studies have also cited the harmfulness of mountaintop removal; together, they make a convincing argument for the discontinuation of mountaintop removal. It may be difficult to persuade elected leaders in the affected states, though, because many have invested in coal as an inexpensive source of energy.

If your baby suffers from a birth defect that you believe may be due to mountaintop removal or a similar environmental hazard, you have options for relief. The Environmental Protection Agency has a Compliance and Enforcement Department that forces polluters to be in compliance with federal environmental laws. There is also an Appalachian Restoration Act bill circulating through Congress, which would amend the Clean Water Act to prohibit dumping mountain waste into streams, effectively ending mountaintop mining. However, the most immediate and best option for you may be a toxic tort lawsuit. In a toxic tort lawsuit, you would argue that the company responsible for mountaintop removal was negligent and, as a result of its actions, your child has a birth defect. First, you would need to argue that the company owed a duty to behave as responsibly as possible to the local community. That argument could be difficult, though, if the company's actions were standard practice in the industry. If you are able to establish that a duty was owed, you would then need to prove that the mountaintop mining was the actual or proximate cause of your baby's birth defect. You could cite the studies that show the harmful effects of mountaintop mining as evidence. In proving causation, you would also need to rule out other possible causes of your child's birth defect, such as genetics, diet, and certain prescription medications.

If enough people are in a situation similar to yours, you could turn your single toxic tort lawsuit into a class action. A class action lawsuit does not have a specific size requirement, though the class size is generally a minimum of 40 members. If you are the one to start the class action, you become known as the "lead plaintiff" or the "class representative." The class representative has responsibilities that come with suing on behalf of the entire class, and works with his or her attorney on a course of action. A class representative also generally receives a larger share of the award or settlement due to his or her extra duties.

Continue reading "Appalachian Counties with Mountaintop Mining Recorded More Birth Defects" »

A new study raises questions about whether pregnant women really benefit from taking folic acid in pill form. Folic acid is believed to lower the risk of birth defects such as spina bifida and other malformations of the brain and spine. As a result, since 1998, U.S. food guidelines have required that grain products be fortified with B vitamin folic acid. In addition, medical experts recommend that women thinking of getting pregnant take folic acid pills to reach 400 milligrams per day.

The new study looked at 6,400 American women who gave birth between 1998 and 2008. As women's intake of folic acid increased, the risk of spina bifida and other related birth defects decreased. However, the study found that women who took folic acid pills to supplement their food intake did not receive any additional benefits. It suggested that women already benefited from eating fortified food products and therefore did not need pills to reach the 400-milligram target. Still, some experts believe that women should continue to take the pills until more research is done.

Spina bifida is a birth defect in which the spine fails to close during early fetal development. This is why women are directed to take folic acid even before conception. While folic acid has reduced the risk, the condition still affects more than 166,000 people. Some cases of spina bifida are mild enough that the person may not even be aware he has it, but others can lead to progressive neurological deterioration in children and adults, nerve damage, and severe disabilities. Anencephaly is a condition that occurs when the cephalic end of the neural tube fails to close, resulting in the absence of much of the brain, skull, and scalp. Most babies diagnosed with anencephaly in the womb do not survive birth.

The causes of these conditions vary, but some have linked them to taking antiepileptic medication. If you are taking antiepileptic medication and have a child with spina bifida, you might want to consider filing a products liability lawsuit against the pharmaceutical manufacturer. First, you would need to rule out other causes for the spina bifida. Other risk factors for pregnant women linked to the condition include being insulin dependent, a previous neural tube defect pregnancy, a high fever early in pregnancy, and low socio-economic status. If you feel confident that none of these factors apply, you can move forward with the lawsuit. You would then need to establish that the medication was the overwhelming cause of the birth defect. Since there are studies linking antiepileptic medication to birth defects, you may not have a difficult task. Be sure to note the dosage that you have been prescribed, since that can be a factor as well.

For a products liability lawsuit, you would need to establish that the manufacturer was negligent and/or strictly liable in creating an unsafe product that caused your infant's birth defect. Either the manufacturer's actions did not meet the reasonable standards of the industry, or the product was simply unsafe, whether negligence was involved or not. For strict liability, you would need to show that the antiepileptic drug could have been made safer without ruining its effectiveness. If enough people are in a position similar to yours, you could form a class action lawsuit.

Continue reading "Pregnant Women May Not Need to Take Folic Acid in Pill Form" »

This blog has previously discussed the negative effects of pesticides on children's IQs. Now a new study reveals that Roundup, the world's best-selling herbicide, is among the pesticides that cause birth defects.

Roundup is the brand name for an herbicide produced by the U.S. company Monsanto. Its active ingredient is glyphosate, which is the most widely used herbicide in the United States. Roundup has been the number one-selling herbicide since 1980, when regulators first learned that glyphosate caused birth defects in laboratory animals. Yet these regulators did not inform the public of the results. Nor did the European Commission, which has known of the birth defects correlation since 2002, make its concerns public. Instead, the public was repeatedly told that the herbicide was safe. As recently as last year, the German Federal Office for Consumer Protection and Food Safety informed the European Commission that there was no evidence of a birth defects link.

The new report was published by Earth Open Source. It noted that in addition to birth defects, Roundup causes endocrine disruption, damage to DNA, reproductive and developmental toxicity, neurotoxicity, and cancer. Even more concerning, it causes these defects at very low doses, comparable to pesticide traces in one's food. The report was released one month after researchers found that genetically modified crops, used in conjunction with Roundup, contained a pathogen that may be linked to animal miscarriages. Don Huber, an emeritus professor at Perdue University who observed the pathogen, wrote to Tom Vilsack, Secretary of Agriculture, claiming that glyphosate led to an increase in more than 40 plant diseases, dismantled plant defenses, and reduced the level of nutrients found in plants. He stated that there should be a moratorium on deregulating crops genetically altered to be immune to Roundup.

The glyphosate chemical will not be reviewed under more stringent standards until 2030. Nonetheless, the Earth Open Source study will likely cause many people to be wary of eating genetically modified plants from non-organic farms. For mothers of children with birth defects, the study may provide necessary evidence for a toxic tort lawsuit against the Roundup manufacturer. In order to have a successful toxic tort lawsuit, you must prove that Monsanto was negligent and/or strictly liable for the damage caused by Roundup. To prove Monsanto's liability, you must show that it had a duty to deliver a safe product to you, that it breached that duty, and that the result caused your child's birth defect.

One of the most difficult aspects of your case would be to prove that Roundup alone was primarily responsible. You would need to determine to what extent you were exposed to Roundup. Did you routinely eat plant foods that would have been sprayed with the herbicide? You would also need to effectively rule out genetics, medical malpractice, and other environmental hazards. You may also find that there are other mothers in similar situations who have children with birth defects. If enough are affected, you could form a class-action lawsuit.

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While genetics and environmental factors can result in birth defects, another contributing factor may be a doctor's actions during the birth. Many babies who would otherwise be developmentally normal end up suffering from brain damage and other birth injuries as a result of medical error.

Recently, a Connecticut family won a $58 million award in a malpractice suit over their child's cerebral palsy. In 2003, the mother's amniotic fluid dropped by half, but their physician waited three days before performing a Caesarian section. Once he did perform the C-section, the family charges, he did so incorrectly. As a result, their son (now eight years old) cannot speak, eat, or walk. He also suffers from seizures. The family's attorney commented: "He is profoundly disabled and the parents have gone through hell." In 2005, they filed a medical malpractice suit. The jury awarded $8 million for their son's medical expenses and the rest for pain and suffering. It was the largest medical malpractice ruling in state history.

In addition to delays in performing Caesarians, physician medical error can consist of delays that lead to oxygen deprivation in the birth canal, or injury to the head or neck through inappropriate use of forceps and other instruments. Concern about the cost of resulting medical malpractice lawsuits has led states like New York to create a malpractice fund to cover birth injury lawsuits. Instead of hospitals covering birth injury costs, the state would pay any awards for malpractice lawsuits, saving hospitals an estimated $320 million per year. By contrast, states like Florida have sought to cap medical malpractice awards at $500,000, regardless of the injury and its effect on the person's quality of life.

While some babies are born with birth injuries that can be treated, others suffer from debilitating brain injuries that leave them unable to care for themselves. Babies in the latter category require years of care and treatment that have a significant impact on their families' finances and emotional well-being. If you believe that your child's cerebral palsy or other birth defect may be linked to a birth injury caused by physician error, you may be eligible to file a medical malpractice suit. First, you need to check whether the statute of limitations for your injury has run out. The statute of limitations is the amount of time you have to initiate a lawsuit after an injury has occurred. It varies from state to state. If you are still within the statute of limitations, you are free to file a lawsuit. In a medical malpractice suit, you would need to show that your physician breached his duty by acting negligently during the delivery, resulting in an injury to your baby. The challenge would be to prove breach and causation. First, you would need to establish that the doctor could have acted more reasonably, that his medical error was avoidable. Second, you would need to establish that those actions were the actual or proximate cause of your baby's birth defect. The longer you wait to file suit, the more difficult it could be to recall the events of the birth. However, authentic medical records could be used to reconstruct some of the details.

Parties in a malpractice lawsuit may agree to settle before the suit reaches court. However, if the parties cannot agree upon a settlement amount, the case will typically go before a jury. If the jury agrees that avoidable medical error caused your baby's injury, it may apportion the monetary award based on general and special damages. Special damages are meant to compensate for specific monetary losses that were caused by the injury, such as damaged property or lost wages. General damages compensate for nonspecific losses, such as pain and suffering. Depending upon the type of injury, as the Connecticut case shows, the amount of general damages can be very high.

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In a follow-up to "New Epilepsy Drugs May Have Lower Birth Defect Risk," a different study published by The Lancet Neurology in June concludes that four of the most common antiepileptic drugs may increase the risk of birth defects if taken by women early in their pregnancy, and even more so if the dosages are higher.

While the Danish study from May examined lamotrigine (Lamictal), oxcarbazepine (Trileptal), gabapentin (Neurontin), and levetiracetam (Keppra), the current EURAP study focused on valporic acid (Depakote), carbamazepine (Tegretol), Lamictal, and phenobarbital. Researchers in the new study found that of the four antiepileptic drugs, Depakote posed the greatest risk to fetal health.

Though past studies have noted the threat of Depakote, this is the first study to examine the threat of antiepileptic drugs based on the dosage prescribed. It examined women who received antiepileptic treatment in their first trimester: 1,402 women were exposed to Tegretol, 1,280 women to Lamictal, 1,010 to Depakote, and 217 to phenobarbital. With each drug, an increase in birth defects corresponded with an increase in the dosage. When prescribed at 300 mg, Lamictal produced the lowest rates of birth defects. Tegretol had the lowest rate of birth defects below 400 mg. Depakote and phenobarbital had the highest rate of birth defects regardless of dosage.

Antiepileptic drugs have been linked to cleft lips and cleft palates. This study is significant in being the first to give physicians insight into which dosage levels are safe. Thus, physicians can help prevent more birth defects by prescribing a safe dose for pregnant women.

If your physician has prescribed an antiepileptic drug that you believe to be the cause of your baby's birth defect, you might consider filing a lawsuit for medical malpractice and/or for products liability. For a medical malpractice lawsuit, you would need to show that your physician had a duty to you as a pregnant woman to prescribe a safe dose of medication. By failing to do so, he or she breached that duty, and the breach was the actual or proximate cause of your baby's birth defect. Establishing the duty should not be a problem, but establishing breach may be more difficult. You would need to show that your physician did not act reasonably according to the standards of the medical community. He knew or should have known that the dosage he prescribed was dangerous, yet he failed to alter the dose or to warn you of the dangers. Since studies examining dosage levels are just starting to emerge, you might have trouble establishing that your physician did not act with due care.

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