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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