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Hypoxic injury at birth as a cause of Autism – several successful legal actions result in compensation awards of €35 million

Over the past two decades there has been increased scientific evidence showing that perinatal or intrapartum (during labour)  hypoxia or ischaemia  are significant risk factors for developing autism and other behavioural abnormalities. This scientific evidence has inevitably led to litigation by persons and families affected when it is believed that labour and or delivery mismanagement has led to resultant autism spectrum disorder (ASD) caused by birth hypoxia. Thus far it is known that there have been at least four claims successfully prosecuted by affected children and their families, resulting in payment of damages of at least €35 million plus costs. There may be other settlements which have not been covered by court reporters.

Background;

Cognitive and Behavioral Abnormalities without Cerebral Palsy

In the past, mainstream opinion was that, in order to attribute subsequent long-term neurological deficits to hypoxic ischemic insult at birth, the affected infant must have cerebral palsy (motor dysfunction) as a component of the subsequent neurological deficits. However, the recent literature demonstrates unequivocally that this is not the case and that intrapartum hypoxic ischemic insult and hypoxic ischemic encephalopathy (HIE) can result in a variety of neurological sequelae including autism and other behavioral deficits, with or without the presence of cerebral palsy, as discussed below.

Recent published medical research

The publication of Ahearn et al provides an overview of this topic and discusses the long-term outcomes in infants e.g., poor attention, explosive behaviour and risk of ASD. In addition, they comment that a number of large population-based studies suggest that the long-term outcome in such infants is not completely normal and the following factors are identified: irritability, decreased school readiness, memory and attention/executive impairments. They also note that NE has been associated with increased behavioural difficulties, hyperactivity, ASD and an increased risk of psychotic symptoms.

Van Handel et al discuss the outcome of term infants following neonatal encephalopathy in terms of long term sequalae. They found that children with moderate neonatal encephalopathy (NE) had on average, intelligence scores below those of children who had only mild NE, but within normal range. They note that, there are studies suggest increased rates of hyperactivity and autism in children with moderate NE.

The publication by Marlow et al, of a study of neuropsychological testing of term infants with moderate encephalopathy found abnormalities in memory and attention/executive functioning.

Getahun et al studied the association of perinatal risk factors for ASD and found that perinatal conditions, especially birth asphyxia and preeclampsia were associated with an increased risk of ASD.

Robertson and Finer demonstrated increased symptoms of explosiveness and irritability at 5½ years of age in survivors of moderate encephalopathy. They also note that NE has been associated with increased behavioural difficulties and that children with a history of moderate and severe NE have future academic failure and a significant increase in ADHD and ASD.

The publication by Badawi et al identified an association between NE and ASD

The publication by de Vries and Cowan noted that long term follow up of infants with HIE identified cognitive and memory deficits even if there were no motor deficits.

The publication by Lindström et al identified cognitive/executive impairments that interfered with daily life in teenagers who had had NE.

The recent publication by Hayes et al concludes that following HIE, children may experience attention, memory and behaviour difficulties which are not always evident at a younger age. They also discuss the fact that some non-motor deficits e.g., subtle cognitive and behavioural difficulties my not become apparent until a later age and comment that such events are often described as “an infant growing into their deficits”.Moster et al noted abnormalities of anxiety, aggression and attention in infants who had had moderate NE.

Finally, a South California cohort Study, “Association of Perinatal Risk Factors with Autism Spectrum Disorder” published in 2017 examined the interrelationship between birth asphyxia  and the risk of developing autism.

The study involved the analysis of birth records of children born at Californian facilities during an 18 year period, from 1991 through 2009. Of that study group, approximately 6,000 children were ultimately diagnosed with autism spectrum disorder. A detailed review of  the birth records of those 6,000 children, found that nearly 40 percent of these children suffered complications either shortly before or during birth. The complications found to be most closely related to autism included birth asphyxia and preeclampsia.

The Occurrence of Hypoxic Ischemic Brain Injury Without Recognisable Abnormality on Subsequent MRI Scans

It has now been established in the medical literature that abnormalities caused by perinatal hypoxic ischemic insult, sufficient to cause long term neurological sequelae, may not be recognised on subsequent MRI studies. If there is unequivocal evidence of an intrapartum hypoxic ischemic insult and subsequent neonatal neurological abnormalities, the fact that the MRI scan does not demonstrate injury to the brain parenchyma does not mean that injury does not exist. Many paediatric neurologists have come to the view that, It is probable that the extent of parenchymal injury is below the level of detection of the MRI scan. It is also possible that  therapeutic hypothermia in the early neonatal period may also play a role in reducing the extent of tissue injury to below the threshold of detection by MRI scan. There is well established literature to support this and in as many as 15% of cases of documented perinatal hypoxic ischemic encephalopathy, there is normal subsequent MRI scanning.

Emerging Litigation

Against the above background and the welter of research and medical publications it is to be expected that there would be medical/clinical negligence  investigations being undertaking by lawyers acting on behalf of families who believe that their child has suffered ASD as a consequence of poor obstetric care  Over the past 7 years it is believed that there have been several such claims for damages successfully brought to conclusion which are discussed below.

In October 2015, the first ever known case was brought in Ireland seeking to link autism with birth events.  Calum Taaffe (7)  sued the Coombe hospital in Dublin over the circumstances of his birth. After a lengthy trial he  settled his action for €2.15 million. One of our founding partners Michael Boylan of MBLLF, acted in this landmark case. The defendant strongly disputed that there was any possibility of a link between autism and hypoxia over the course of a 12 day trial, before eventually entering into an out of court settlement approved by the court, on a compromise basis.

Calum, suffered severe neurological and cognitive problems and was diagnosed with autism, which he alleged arose from the circumstances of his birth on December 26th, 2007. It was the plaintiffs case that Calum was “flat” at delivery and in poor condition and in the early days of life the treating neonatologist in the defendant hospital, had diagnosed him as suffering from moderate hypoxic ischaemic encephalopathy (HIE)

It was claimed there was a failure to properly monitor the baby and his mother during labour and to properly monitor and assess the CTG trace. These claims were denied by the defendant in its defence but in reality the defendants did not seek to challenge the plaintiffs obstetric evidence at the trial. Rather the defendants sought to strongly dispute (1)that the plaintiff had in fact suffered anything more than mild hypoxic ischaemic insult or injury and (2) that hypoxia could ever cause autism.

Approving the settlement, Mr Justice Kevin Cross said it was a very good one which he had no hesitation in approving given the risks for the plaintiff in pursuing this “pathfinder case” which had not been tested in the courts previously.

Some 4 years later, In Finn Phillips v NMH  (June 2019) the action was settled by mediation where Mr. Justice Kevin Cross was happy to endorse a settlement of €7.25 million for a child that developed autism following a traumatic birth.

The boy was delivered by ventouse delivery and it was alleged that he was unnecessarily exposed to both asphyxia and trauma from the vacuum extraction. His Lawyers argued that this led to potential long term consequences. The injuries suffered, it was claimed, included developmental delay and autism. It was claimed that there was a failure to manage Finn’s mother’s labour appropriately and an alleged failure to intervene in time.

Now (October 2022) Ashton Shiels Flynn, through his mother Michelle, sued the National Maternity Hospital (NMH)  over the circumstances of his birth. the action alleging autism caused by birth asphyxia has been settled  for €10 million in damages plus costs. Aston’s counsel, told the court the settlement represented 50% of the full value of the case. He said liability and causation were fully contested by the hospital.

Ashton aged 8, the court heard, is on the highest scale of the autism spectrum, only has limited speech, and has developmental delay.

The settlement marks the end of an eight-year battle for Aston’s family.

Counsel said it was their case that Aston should have been delivered four days earlier. Counsel said that they were also claiming that neonatal care was mismanaged.

It was also claimed there was a failure to attach any or any due significance to CTG tracing of the baby’s heartbeat in the days before the delivery which it was alleged were non-reassuring.

The mother had been discharged home to await spontaneous labour when it was allegedly unsafe and unreasonable to do so.

It was further claimed there was a failure to expedite delivery when the mother returned to the hospital on 7th March 2014.It was also claimed he suffered acute hypoxia prior to and at his delivery. There was also, it was claimed, a delay in diagnosing that the baby had hyperinsulinemia hypoglycaemia.

The claims were denied. Approving the settlement, Mr Justice Coffey said it was a very sad and tragic case and accepted there were significant litigation risks in the case. The judge said the €10million offered was a fair and reasonable settlement. He told Aston’s parents he was delighted they had reached a settlement and said he was sure it had been a great burden for them for a very long time.

Most recently a teenage boy settled his case against the Coombe Hospital over post-birth care for €15 million (October 2022). This settlement is the latest known settlement and the largest to date

The Hospital apologised to the boy and his family for failings in care after his birth. The apology was read out in the High Court as the young man, who cannot be named, settled his legal action for €15 million.

This was the biggest settlement among the small number of cases that have sought to establish an alleged link between autism and brain injury.

Liability was conceded in part of the case but claims in relation to an alleged link to autism were denied. It is not clear what part of the award is attributable to his ASD. In a letter to the family, read to the court, the master of the Coombe Hospital, Professor Michael O’Connell, offered sincere apologies “for the failings in care that caused injury”.

“We in the hospital understand and sincerely regret that our failings in care have led to lifelong consequences, not only for the boy, but also for his parents and family,” Prof O’Connell wrote.

It was claimed the boy had an infection and developed meningitis. In the months after his birth he was noted as having developmental delay and hearing loss. He was later diagnosed with autism.

The negligence centred on an alleged delay in recognising and responding to signs of infection the baby began to show after his delivery. It was claimed there was a failure to respond to maternal evidence of infection as a factor in treating the baby with antibiotics. There was also an alleged failure to seek urgent paediatric opinion when it ought to have been known it was urgently required.

The boy later showed developmental delay developed autism and had difficulty with his hearing and language, as well as co-ordination difficulties. Mr Justice Paul Coffey approved the settlement.

 The future?

It seems likely that there will be more of these type of actions coming before the courts  as families become increasingly aware of the possibility of establishing that the causation of the autism/developmental delay was antecedent birth asphyxia. Indeed this firm are currently handling 2 further similar cases, one of which is listed for trial in January next.

Whilst the above 4 settlements do not establish  binding legal precedents, as they were settlements rather than official court judgements, nevertheless the multi million euro damages that the state defendants have agreed to pay,  reflects the overwhelming body of medical opinion which supports the link between autism and birth asphyxia.

In these circumstances serious questions must be asked as to why the state claims agency, continue to strenuously contest the possibility of a  link between autism and hypoxia ischaemia at birth, in every single similar legal action brought by affected families. It would appear that very significant time ,effort and financial resources are continuing to be expended by the state in seeking to deny what is now well established mainstream medical science . While mounting such defences may be perfectly legally legitimate, are such defence tactics acceptable or humane, when they add enormously to the stress, worry and burden on families who are  already struggling to cope ?. Such defences are often associated with an unmeritorious claim that the autism has a genetic familial  origin, which then can cause unjustified but understandable parental guilt.

This firm believes that the state claims agency need to review their practices for dealing with these type of claims so as to avoid further  traumatising victims and their families The current knee jerk approach of blanket denial of the link between autism and birth asphyxia seems to be a further example of a policy of “ defend and deny” to the bitter end.

We submit, that as the state claims agency now handles all birth injury litigation in this country, they will be aware of every single claim for damages in respect of alleged hypoxic induced autism. Thus, the agency is in a unique position to publish reliable data and statistics outlining the nature and extent of the current problem. Publishing such key data could assist health care professionals working in Irish maternity units in developing strategies prevent or reduce the incidence of such injuries. Surely such a policy of openness and learning is to be encouraged rather than a continual denial of what is now well established mainstream medical science being thought at medical school.

If you require further information or advice on any issues arising from this report contact Gillian O'Connor, Managing Partner, Michael Boylan Partner or Ciara McPhillips Partner at 01-9017418

1st November 2022

Michael Boylan Litigation Law Firm