If your baby has suffered brain damage a the hands of a negligent doctor, you have just been thrust into a war zone. So called litigation literature is just one of the many weapons doctors wield to protect themselves when they make mistakes and to torpedo your child’s chances of ever achieving some semblance of justice.

Litigation literature describes any study masquerading as an honest, scientific study but was written to refute plaintiffs’ claims in court. One such example is the requirement that brain damaged babies must prove that something the doctor did actually caused the brain damage – lawyers call this causation. The American College of Obstetrics and Gynecology (ACOG) wrote a paper purporting to be an honest scientific study that claimed that 90 percent of brain damaged babies received those injuries before birth.

A common claim in court is that brain damage is caused by a baby’s inability to get oxygen to its brain during birth. In 1992 however, doctors got tired of losing trials after negligently delivering a baby so they decided to promote some arguments that would protect them.

This particular study manipulated the existing medical literature to create a false sense of four essential criteria without which lack of oxygen during birth could not cause brain damage. The study claimed that birth injury to the brain could not be caused by lack of oxygen unless all four of these criteria were present:

1. Ph of less than 7.0;
2. Apgar scores of 0-3 for five or more minutes;
3. Symptoms like seizures and coma; and,
4. Multi-organ dysfunction following birth.

Of great interest is that neither number two nor four are considered valid today. Criteria number two is Apgar score, a numerical indicator given by nurses of how well the baby is breathing and moving after birth. However, in response to this article, hospitals had nurses assign Apgar scores of four or more. Thus, by artificially inflating the score, doctors and hospitals could avoid liability if a jury bought into the junk science they were propounding.

The truth is that a real scientific study based on hard evidence show the ACOG theory to be absolutely false. In fact at least 80 percent of brain damaged babies studied suffered injury due to lack of oxygen during birth. This evidence was gathered from autopsies and MRI scans which can reliably indicate the degree and timing of brain damage due to hypoxia (lack of oxygen).

We as plaintiffs’ lawyers work hard to overcome litigation literature and discredit the so called experts who propound these junk science theories, but the fight goes on and newly misleading articles continue to be published. A tragic side effect is that these junk science studies are entering the medical literature and are misleading well meaning health care providers.

There’s a new movement gaining momentum that casts doubts on the scientific evidence behind “shaken baby syndrome.” Medical and legal practitioners are begining to ask whether it is actually possible to shake a baby to death.

Shaken baby syndrome is usually diagnosed in the absence of physical signs of child abuse like bruises, cuts and broken bones. However, even without those symptoms, babies arrive at the emergency room with bleeding at the back of the eye, brain swelling and bleeding. This set of symptoms is often diagnosed as shaken baby syndrome and attributed to an adult vigorously shaking the baby.

Experts said that those three symptoms could only occur as the result of a shaking that produced forces equal to those of a car crash at speeds of 25-40 mph or a fall from a three story building. Some recent research using devices similar to crash test dummies suggests that aggressive shaking only produces injuries equal to those suffered in a 2-to 3-foot fall.

Reason and Discover magazine have published interesting articles about this growing group who are suspicious of shaken baby syndrome.