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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 Atlanta 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.”
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