The parents of a girl suing the HSE for alleged medical negligence during treatment some weeks after her birth, must allow themselves and their daughter to be genetically tested if the case is to proceed, the High Court has ruled.
The child was admitted to a hospital the month following her birth and, in the claim, it was reported she repeatedly “threw her body back” and had multiple episodes of vomiting, including projectile vomiting. It is also pleaded that blood testing showed an abnormally low haemoglobin level.
She was discharged after three days with advice that the child had cow’s milk protein allergy with associated gastro-oesophageal reflux. Dietary advice was given to the parents and an ophthalmology assessment was planned.
She was admitted again just over a week later following ongoing parental concern and a number of tests were carried out before she was transferred to a general children’s hospital in Dublin.
A neurodevelopmental assessment was carried out there on February 27th, 2020 and an MRI brain scan recorded certain findings.
It is alleged that the defendant was negligent in its assessment, investigation, diagnosis and management of the child between February 9th and 25th, 2020, and that those failures resulted in a delay in diagnosing and treating intracranial pathology with consequent progression of raised intracranial pressure and brain injury.
It is claimed that by reason of these cumulative omissions and delays, appropriate neurosurgical drainage was not established until after severe hydrocephalus had developed, and that the delay materially contributed to permanent neurological injury and disability.
The HSE admits breach of duty of care in relation to certain matters but denies that this, or any other alleged negligence, caused and/or contributed in a material way to the alleged injuries of the child.
As part of its case, the HSE first sought that the parents and the child should be tested to determine if there was any genetic reason for the child’s condition.
It applied to the court for a stay on the medical negligence proceedings until those tests had been carried out. The parents opposed the application.
In arguing for the tests, the HSE said a report from Dr Samantha Doyle, a biochemical geneticist and clinical lead for perinatal genomics at the National Maternity Hospital, stated the clinicians involved in the child’s care have had suspicions about an underlying genetic diagnosis.
Doyle said she concurred with their concerns and that in order to progress the investigations that are required, a full assessment by a clinical geneticist is required.
The investigations are performed on a sample of DNA which would be taken from inside the mouths of the parents and child and which is not painful to obtain, she said.
In granting a stay on the medical negligence proceedings, Judge Garret Simons said the HSE had discharged the onus to establish that genetic assessment results are likely to assist in resolving the issues in controversy between the parties.
The parents/child side had put forward no expert evidence to the contrary, he said. Their solicitor had filed an affidavit which consisted largely of legal submission and purported to criticise certain aspects of Doyle’s evidence.
“This is entirely inappropriate: the solicitor has neither the requisite independence nor the expertise to offer any admissible opinion on genetic testing,” he said.
He also said if the cause of the child’s medical presentation is established at trial to be genetic, and if no expert evidence is adduced to establish that the events of February 2020 made a contribution to her current medical presentation, then the case would likely have to be dismissed. However, it remains open to the parents to present expert evidence at the trial, he said.
The balance of justice lay in favour of staying the proceedings pending the carrying out of the genetic testing, he said.
