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In an article published in the January
2007 issue of Trial magazine, Washington lawyer Dov Apfel criticizes the
methods the American College of Obstetricians and Gynecologists (ACOG)
uses to assess whether or not a brain-damaged child’s injuries during
labor or birth were caused by asphyxia – suffocation caused by lack of
oxygen and excess carbon dioxide in the blood.
The article, “Birth Asphyxia and
Cerebral Palsy,” lists results from several studies around the world
that detail the dangers of asphyxia during labor, and asserts that
asphyxia is a preventable cause of cerebral palsy.
“The parents of a child diagnosed
with cerebral palsy (CP) have a right to know whether their baby was
exposed to damaging asphyxia; whether, at any time during the
pregnancy and/or during labor and delivery, clinicians failed to
recognize signs of developing asphyxia; and whether there was a
‘window of opportunity’ for preventing or minimizing their child’s
asphyxial brain injury,” Apfel writes. “They are entitled to
accurate information about asphyxia’s role in causing CP from
medical professionals who - without risk of censure by their peers -
rely on valid clinical markers to determine the etiology and timing
of the events leading to neonatal brain damage.”
Apfel states that when parents of
children diagnosed with CP seek answers, physicians do not want to
meet with them to discuss whether the child was exposed to asphyxia,
and whether the brain injury could have been prevented. Apfel calls
this a “conspiracy of silence that clouds this area of medicine.”
Lawyers, Apfel writes, will be
confronted by ACOG’s aggressively marketed tort “reform” agenda:
“Instead of educating doctors and the public about the importance of
preventing asphyxia, they claim that most cases of CP result from
circumstances arising before labor and delivery - and rarely from
preventable causes.”
In order to effectively advise and
represent parents with brain-damaged children, Apfel says lawyers
must become familiar with worldwide epidemiological studies and
experimental animal data “that strongly suggest asphyxia does play a
critical role in the development of neonatal brain injury during
labor and around the time of birth - and that it is preventable.”
Apfel includes studies linking CP and
asphyxia from around the world, including Canada, Egypt, France,
Israel, Norway, Scotland, Sweden and the United States.
The Centers for Disease Control and
Prevention established the Metropolitan AAJnta Developmental
Disabilities Surveillance Program in 1991 to monitor the occurrence
of mental retardation, CP, hearing loss, and vision impairment among
children ages 3 to 10 in a five-county area. In January 2006, the
program reported that the overall prevalence of CP was 3.6 per 1,000
live births in 1996 and 3.1 per 1,000 in 2000. The program serves as
a model for similar programs in 16 other states.
Despite that, Apfel writes,
obstetricians continue to insist that most cases are caused by
events that occur before labor and delivery. “However,” notes Apfel,
“a 2003 study performed with modern neuroimaging techniques
contradicts these claims and confirms the important role of labor
and delivery in the causal pathway to brain injury.”
Although other potential causes of CP
exist - including infection, trauma, coagulation disorders,
malformations, and genetic disorders - Apfel reports that dozens of
studies prove that asphyxia and hypoxic-ischemic injury affect a
substantial number of babies, and they are potentially preventable
causes of CP.
“Thus, child advocates have a
responsibility to educate trial judges, legislators, jurors, and the
public about the findings in these studies, so they understand that
ACOG’s views about the minimal role of asphyxia in causing CP are
self-serving and not generally accepted in the worldwide scientific
community,” Apfel states. “If the investigators in these studies of
infants with CP from diverse populations can identify intrapartum
asphyxia as the most likely cause of a brain injury, experts
performing a differential diagnosis in a single CP case certainly
can determine whether and when damaging asphyxia was the most likely
cause of that child’s brain damage.”
Apfel notes that much of the
information about the adverse effects of hypoxia, ischemia, and
asphyxia is based on animal experiments in which oxygen delivery and
blood flow to a fetus was cut off or reduced by various means and
the fetal response was studied. However, human fetuses have the same
ability as primates “to compensate during episodes of hypoxia by
redistributing blood flow to the brain, heart, and adrenal glands.”
Apfel argues that child advocates
must be familiar with the studies confirming that asphyxial injury
is an important cause of CP and that it often occurs during labor
and delivery. “Even though CP cannot always be prevented, every
parent should be able to expect clinicians to recognize a hostile
intrauterine environment and to try to minimize its effects.
“This expectation is not
revolutionary, it is not based on erroneous assumptions or obsolete
science, and it does not impose an unreasonable burden on an
obstetrical community that continues to claim - despite
epidemiological evidence to the contrary - that asphyxia rarely
causes CP. It simply requires the physician to follow the basic
tenet to ‘do no harm.’ “
In the final analysis, Apfel
concludes, “judges, jurors, legislators, and the general public
should be encouraged to consider data from animal experiments and
worldwide studies that contradict ACOG’s self-serving claim that
intrapartum asphyxia rarely causes CP. They also need to understand
that litigation criteria marketed by obstetricians who are
determined to both make the rules regarding when they may be liable
for a child’s brain damage and select the experts who are qualified
to administer those rules have no place in cerebral palsy
litigation.”
Contact Medlaw Legal Team
at cp@medlawlegalteam.com or
1-888-4-MEDLAW, so we can assist you in determining if you are entitled
to receive compensation for the harm caused to you. Our physicians /
attorneys will review your situation and inform you promptly as to
whether you have a case.
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