America has grossly undercounted its opioid-dependent babies. They deserve justice


They cry every night, and yet they are unheard — the hundreds of thousands of American babies born in this century to mothers hooked on opioids, a manmade crisis fueled by the greed of some of the nation’s biggest pharmaceutical companies.

One reason that everyday Americans don’t know as much as they should about these children born into what the doctors call Neonatal Abstinence Syndrome, or NAS, is that new evidence shows the extent of the crisis has been vastly undercounted. Indeed, the level of miscalculation is astounding.

In recent months, I and the Cooper Law Firm — where I am of counsel — have been deeply involved in complex litigation seeking to force Big Pharma to pay for a medical monitoring trust fund for these kids. We want to ensure that these young people — cases dating back to the introduction of opioids like oxycontin in the mid-1990s — can afford the medical and mental health treatment and special education needs that were foisted upon them.

Our legal group — the Opioid Justice Team — has worked with top experts to develop a much better estimate of the numbers of these NAS babies who are so much in need of assistance, with the knowledge that the current working government number of about 29,500 NAS births in 2018 fell far short of the real total

Based on information that about one-in-three pregnant women in America — or roughly 1.3 million out of the 3.8 million women who gave birth — were given a prescription for opioid painkillers, our team has estimated that a baby with serious problems related to opioid exposure is born somewhere in the United States every 19 minutes. A conservative estimate is that this results in roughly 250,000 births every year of children with some level of NAS that will require the type of specialized treatment that we are seeking. That’s more than eight times the government’s figure.

Dr. Brent Bell of the Opioid Justice Team, who compiled our report using statistics from the Centers for Disease Control, said that the most recent research from Australia and the University of Kentucky finds “the amount of opioid use, the time of exposure in the pregnancy and the length of exposure may show up years later in social, interactive, behavioral, cognitive and educational deficits of the child, even if the born child tests ‘clean.’” What’s more, some states don’t even use the coding system for NAS babies, and the current method of counting doesn’t include children born to midwives or otherwise outside the hospital system.

This new information is critical because our team is now pursuing class-action suits on behalf of opioid-dependent babies and the children of mothers who were prescribed opioid painkillers in 34 out of the 48 states where hospitals are required to report NAS births. The goal of these legal actions is to compel the big drug manufacturers and distributors who made billions of dollars in profits by aggressively pushing these painkillers to pay for the medical care these children will be needing, in many cases, for the rest of their lives.

Our federal lawsuits are tied to a broader effort to get children born to prescription opioid-dependent-and-using mothers recognized as their own legal class within the national opioid litigation, which is currently before U.S. District Court Judge Daniel A. Polster in Cleveland. The multi-district litigation– a massive case that’s received considerable national attention – is currently focused mainly on America’s localities struggling to pay the cost of the opioid epidemic. But opioid-dependent babies are one of many groups — including counties, cities, hospitals, indigenous peoples, and state attorney generals — seeking to be recognized as their own legal class.

“We are waving a huge red flag,” Attorney Celeste Brustowicz, an attorney with the Opioid Justice Team said. “The number of babies testing positive for opioids in utero is alarming and the impact these children will have on their families and other institutions who help address their long-term medical and development needs is astronomical. This issue has been consistently under-reported since the opioid epidemic began in 1996.”

The New York Times reported earlier this month that “Judge Polster has long said that his goal is a comprehensive settlement that offers meaningful solutions, both immediate and long term, to the damage wrought by opioids.” Their article said the judge and other key parties are looking at a more comprehensive settlement but it’s not clear whether opioid-dependent babies will be part of this. We are hoping to have our day in court this fall.

In the publication Law 360, Elizabeth Chamblee Burch, a law professor at the University of Georgia, made an impassioned plea for including opioid-dependent babies in the case. She wrote that for lawyers “to prove that opioid babies are entitled to ongoing medical monitoring, for example, they need information about drug companies’ marketing efforts to obstetricians and gynecologists. They want to know what those companies knew about the harmful effects babies might experience in utero from opioid-addicted mothers. But those aren’t issues that relate to states’ and counties’ focus on government reimbursement.”

The key to judging any society is how well it takes care of his children. We happen to be having this debate about how to deal with opioid-dependent babies at the same moment that America is grappling what to do with a wave of desperate young children trying to cross our southern border. If you feel empathy for them – and you should – then you should feel empathy for these thousands of kids born on U.S. soil, with a condition allowed to fester because of corporate greed. Knowing that the number of NAS babies and children is so large is why we continue our fight to get these young Americans the justice that they deserve.

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Stuart H. Smith is an attorney based in New Orleans fighting major oil companies and other polluters.
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