Obstetrical Malpractice Action: Judge Orders the Plaintiffs to Undergo Genetic Testing

  • July 04, 2022
  • Paula Poniatowska

Case Facts:

Andrew Klinck was diagnosed with hypoxic-ischemic encephalopathy ("HIE") and meconium aspiration syndrome at birth. Andrew was subsequently diagnosed with dyskinetic cerebral palsy.[1] Andrew’s biological parents, Sherri Lane and Gregory Koenderman, and Joel and Sara Klinck, Andrew's adoptive parents, alleged that Andrew's injuries were caused or contributed to by the negligence of the midwife and the physicians for failure to recognize signs of fetal distress and the physicians' failure to order an emergency cesarean section.

The defendants sought an order requiring the plaintiffs to submit to a medical examination according to s. 105 of the Courts of Justice Act. The proposed examination involved the collection of a blood sample from Andrew and his biological parents for specific genetic testing to prove that Andrew’s condition was hereditary and not caused by the alleged negligence of the defendants. The plaintiffs asserted that the order sought would deprive them of their right to privacy. Further, it was submitted that with the enactment of the Genetic Non-Discrimination Act, the federal government had “occupied the field” in genetic testing and that s. 105 of the Courts of Justice Act did not provide legal authority for a judge to compel genetic testing in the present context. The plaintiffs also took the position that the defendants had failed to tender evidence of a specific genetic disorder that would account for some or all of Andrew’s injuries.