Ontario court orders genetic testing in obstetrical malpractice action despite privacy concerns

Defendants involved in labour and delivery allege that minor plaintiff may have genetic condition

Ontario court orders genetic testing in obstetrical malpractice action despite privacy concerns

The Superior Court of Justice of Ontario recently found that there was a reasonable possibility that genetic testing would provide cogent evidence that would assist the parties and the court if the matter proceeded to trial.

In Klinck v. Dorsay, 2021 ONSC 6285, the minor plaintiff, born in May 2014 and adopted in 2016, was diagnosed with hypoxic ischemic encephalopathy and meconium aspiration syndrome at birth and numerous serious medical conditions, including dyskinetic cerebral palsy.

The plaintiffs, who included the minor plaintiff’s adoptive parents and his biological parents, filed an obstetrical malpractice action seeking damages of more than $12,000,000. They alleged that the defendants’ negligence, including a failure to order an emergency caesarean section and recognizing signs of fetal distress and the need for an urgent delivery, caused or contributed to the minor plaintiff’s injuries.

The defendants, the midwives and physicians involved in the labour and delivery, presented reports opining that the minor plaintiff could have an underlying genetic disorder, most likely hypomyelinating syndrome and that a precise diagnosis could be made with genetic testing. However, the adoptive father chose not to pursue genetic testing.

The defendants filed two motions seeking orders allowing them to conduct independent medical examinations under s. 105 of the Courts of Justice Act, R.S.O. 1990, c. C.43 and Rule 33.01 of the Rules of Civil Procedure, R.R.O., Reg. 194, which would involve collecting blood samples from the minor plaintiff and the biological parents for genetic analysis and testing.

The Ontario Superior Court, exercising its discretion under s. 105 and rule 33.01, granted the defendants’ motions, finding that they met the bar of providing cogent medical evidence that a genetic cause for the injuries was a reasonable possibility, in the sense that their request was not frivolous. The court noted that the expert witnesses had opined that the minor plaintiff’s clinical and neuroimaging features suggested an underlying genetic cause inconsistent with a hypoxic ischemic brain injury.

The court then addressed the elements of fairness, necessity and prejudice associated with the proposed medical examination. The court ruled that it would be unfair for the plaintiffs to prevent the acquisition of evidence that might assist the defendants in making their defence and the trial court in determining the claims for damages.

Concerning necessity, the court held that the requested genetic testing was warranted, legitimate, and likely to produce information relevant to the claim. The defendants had successfully shown the purpose of the requested genetic testing and how it would impact the issues of causation and damages.

Regarding prejudice, the court balanced the parties’ competing interests and considered the protections available to the biological parents and the lack of alleged prejudice concerning the minor plaintiff. The court concluded that the prejudice to the defendants, if the requested genetic testing were refused, would outweigh the prejudice to the plaintiffs if such testing was permitted.

The court noted that the Genetic Non-Discrimination Act, S.C. 2017, c. 3 provides safeguards that would address the alleged privacy concerns of the biological parents. The legislation’s purpose is to respond to Canadians’ fears that their genetic test results might be used against them and to prevent discrimination based on such results.

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