Law Office Of Michael G. O’Neill, The Types of Cases We Handle
Medical Malpractice - Autism

In the seventh month of her pregnancy, the potential client learned that her baby was breeched. Normal birth position is head first. A breeched baby is turned around and will exit feet or buttocks first. Breeched babies are almost always delivered by caesarean section. At nine months, as she began having contractions, a nurse told her that the baby was in the normal position. As labor progressed, it became obvious that the baby was still breeched, and the baby was delivered via c-section.

The baby is now four years old and autistic. The mother believes there is a connection between the birth complications and the autism. She wants to know if she has a malpractice case. This is a reasonable question to ask, because there is at least one study that has suggested a link between breech position and autism.

Medical Malpractice occurs when a physician or other medical professional, in treating the patient, fails to follow the standard of care prevailing in the community, and that failure causes injuries. We say that the physician has "breached" the standard of care, but I wanted to avoid using that word in this context, to prevent confusion with the "breech" birth position.

In this case, I see problems proving both the breach of the standard of care and causation. Causation first: we do not know what causes autism. Since we do not know what causes it, it would be impossible to find an expert witness to testify that the medical care provided at the infant's birth was the cause of the autism. The study showing that the breech position is associated with an increase in incidence of autism is just not the same thing as showing causation. Even if it were, however, we do not know what causes breech position. If breech caused autism, you would have to prove that the doctor caused the breech. This is impossible.

Second, once it became apparent that the baby was in breech, the baby was delivered via c-section, which is undoubtedly the standard of care. If the baby had not been delivered via c-section, some very bad things might have happened, which could have served as the basis for a medical malpractice claim, but those aren't the facts of this case.

What about the nurse who incorrectly told the prospective client that the baby was no longer in breech? That is potentially a breach of the standard of care, but it seems to have caused no damages. The hospital discovered the nurse's mistake in time to deliver the baby properly. Where you have a medical mistake and a bad outcome, it is common for people to conclude that they have a medical malpractice case. Indeed, these are essential elements for a medical malpractice case, but they are not sufficient. The issue of causation is often the most critical aspect of the case.

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