Written by Sophie Luesby, LL.B. Candidate, MG Law
The cause of Autism Spectrum Disorder (ASD) has eluded health care professionals and scientists for many years. Autism was first described in the 1940s, but did not become an important subject of research until the last few decades.1 Given the complexity and the variety of presentations, it is believed that there could be many different causes for the development of ASD. Recent studies seem to suggest that birth injuries or birth traumas can lead to ASD and/or other neurodevelopmental disorders. What if the actions of your doctor could have contributed or even caused your child’s Autism Spectrum Disorder, and what would be the legal action you could take? We will explore these questions in this blog.
Firstly, what is Autism? Autism Spectrum Disorder is a perplexing and pervasive neurodevelopmental disorder characterized by deficits in social communication and social interaction with the presence of restricted, repetitive behaviors.2 According to Public Health Canada, approximately 1 in 66 children have been identified with ASD;3 and the disorder is reported to occur in all racial, ethnic and socioeconomic groups.4
In a recent study conducted by Dr. Getahun and others, the researchers attempted to examine the association between pregnancy related complications and ASD. In their study, they found that children who were exposed to complications shortly before or during birth were at an increased risk of ASD. 5 According to the study findings, the perinatal complications that had the highest association with ASD were birth asphyxia – deprivation of oxygen during the birthing process – and preeclampsia – a pregnancy complication characterized by high blood pressure and signs of damage to other organ systems. Other perinatal complications that were associated with ASD included premature separation of the placenta from the uterus, breech/transverse fetal presentation, fetal dystocia/abnormal size or position, and a prolapsed/exposed umbilical cord.6
For this retrospective study, the study population was drawn from a total of 594,638 births at Kaiser Permanente hospitals in Southern California between 1991 and 2009. During this time, 6,255 of these children were diagnosed with ASD, and the incidence rate of ASD was found to be significantly higher in children exposed to perinatal complications than unexposed children. Dr. Getahun et al. concluded that children exposed to complications during birth were more likely to be diagnosed with ASD than those who were not exposed to perinatal complications even after adjusting for factors such as gestational age at birth and a mother’s age, race and education.7
The study lead author Dr. Getahun explains that “[w]hile there currently is no cure for ASD, early identification of children who may be at risk of developing the disorder is extremely important, as research shows that early intervention treatment services for children with ASD can greatly improve their development.”8
If we take birth asphyxia as our illustrative example, most frequent causes of this complication are: prolonged labour; midforceps or breech delivery in full-term infants; difficult breech delivery; maternal sedation in premature infants; and unattended precipitate deliveries in immature infants.9 Some of these could occur as a result of a medical practitioner’s decision-making. What if this medical practitioner makes a careless mistake in their decision-making process? What would it take to show that this medical practitioner was negligent at law?
As Dr. Karin Nelson explains in her article The Neurologically Impaired Child and Alleged Malpractice at Birth, “some of the largest awards in medical litigation have been made for neurologic impairment in children.”10 A birth injury lawsuit can help you and your family recover damages for past, current, and future medical expenses; for costs associated with rehabilitation, therapy, counseling, and specialized medical equipment; for lost wages due to providing care for the disabled child; for pain, suffering, and emotional distress; and for loss of enjoyment and companionship.
However, in order to succeed in a medical malpractice lawsuit in Ontario, one must be able to show that 1) the actions of the health care practitioner fell below the standard of care reasonably accepted from a practitioner in the performance of the specific task or procedure; and 2) that this failure to meet the standard of care was the likely cause of the injury and resulting damages. It is important to understand that though a Plaintiff could have been injured as a result of a medical procedure, unless it can be shown that the health care practitioner fell below the accepted standard of care for this procedure, they will not be considered negligent in their actions. Furthermore, at law, the Plaintiff has the burden of proving – on a balance of probabilities – that the Defendant caused or contributed to the injury.11 The second part of the test, also known as the causation test, can be problematic when considering the examples presented in this blog.
Today, the research regarding the causes of ASD are wide and varied. Some researchers continue to maintain that the increased prevalence of obstetric complications among autism cases is most likely due to the underlying genetic factors or an interaction of these factors with the environment.12 There are evidently many factors that have been identified as having the potential to make a child more susceptible to developing ASD. One might wonder whether the developing research regarding the causes of ASD is sufficient to establish causation where a health care practitioner was negligent in the delivery of a baby.
What are your thoughts on the matter? Alternatively, you can read more in a previous blog on negligence and birth trauma cases here. Or feel free to give us a call at (613) 730-8460 if you experienced something similar and need legal guidance. Our team has experience with Obstetrical Malpractice, and we’re always here to help.
2 American Speech-Language-Hearing Association, Autism <https://www.asha.org/practice-portal/clinical-topics/autism/> accessed 30 May 2019.
3 Public Health Agency of Canada, Autism Spectrum Disorder among Children and Youth in Canada 2018, A Report of the National Autism Spectrum Disorder Surveillance System (Ottawa: Public Health Canada, 2018) <https://www.canada.ca/content/dam/phac-aspc/documents/services/publications/diseases-conditions/autism-spectrum-disorder-children-youth-canada-2018/autism-spectrum-disorder-children-youth-canada-2018.pdf> accessed 29 May 2019.
4 Baio J, Wiggins L, Christensen DL, et al., Prevalence of Autism Spectrum Disorder Among Children Aged 8 Years — Autism and Developmental Disabilities Monitoring Network, 11 Sites, United States, 2014 (Morbidity and Mortality Weekly Report – Surveillance Summaries, 27 April 2018).
5 Dr. Getahun, Dr. Fassett, Dr. Peltier et al., Association of Perinatal Risk Factors with Autism Spectrum Disorder (2017) 34(03) American Journal of Perinatology 295-304.
9 John R. O’Brien, Robert H. Usher, and George B. Maughan, Causes of Birth Asphyxia and Trauma (1966) 94(21) Canadian Medical Association Journal 1077–1085.
10 (1999) 17(2) Neurologic Clinics 283-293.
11 Athey v. Leonati,  3 SCR 458 at para 13; Snell v. Farrell,  2 SCR 311 at para 14; McGhee v. National Coal Board,  All ER 1008 at para 4 (HL).
12 Glasson EJ, Bower C, Petterson B, et al., Perinatal factors and the development of autism: a population study
(2004) 61(6) Archives of General Psychiatry 618-27.