Bad medicine

The High Court has ruled on the circumstances in which a stay may be granted on medical-negligence proceedings pending a plaintiff agreeing to undergo further testing sought by the defendant. Gemma Hayes gets out the swabs

The judgment delivered by Simons J in C (A Minor) v HSE is the first of its kind in Irish law. On 22 April, the High Court made an order in which it granted a stay on the progression of medical-negligence proceedings until such a time as the plaintiff (a minor child) and her parents agreed to undergo genetic testing by the defendant's expert.

The plaintiff, suing by her father and next friend, had advanced a claim of medical negligence on the part of the defendant for alleged failures in her assessment, investigation, diagnosis, and management at St Luke's General Hospital, Kilkenny, on various dates in February 2020. 

It is the plaintiff's case that she suffered post-haemorrhagic hydrocephalus and that, as a result of the alleged failures, the defendant contributed to a permanent neurological injury and disability that she now experiences.

The defendant admitted certain breaches in its duty of care to the plaintiff, but did not admit that it caused or contributed to the neurological injuries and disability that the plaintiff is alleged to have sustained.

What the doctor ordered

In the course of its investigations into the plaintiff's claim, the defendant obtained a report from a consultant clinical and biochemical geneticist. The report concluded that the plaintiff was suspected to have an underlying genetic factor that affected the presentation of her neurological injury and disability.

At the end of 2024, the defendant wrote to the plaintiff and her parents requesting that they meet with its consultant geneticist for examination and testing.

The plaintiff and her parents declined to undergo the examination, citing safeguarding concerns about the handling and preservation of the genetic material collected, and the extent to which incidental or secondary genetic findings might be disclosed.

Following the exchange of significant correspondence on the issue, the defendant brought a motion seeking to stay the substantive proceedings until such time as the plaintiff and her parents (a) attend for clinical examination by its genetics expert, and (b) provide a buccal swab sample to allow for trio-exome sequencing testing to be conducted thereon.

Importantly, the motion did not seek to compel the plaintiff and her parents to undergo genetic examination or testing – only that the proceedings be stayed until such time as they elected to undergo the examination sought by the defendant.

Remedy

At the outset of his judgment, Simons J reaffirmed the position set out in McGrory v Electricity Supply Board that the High Court enjoys an inherent jurisdiction to stay personal-injuries proceedings where the justice of the case so requires.

The rationale underlying this jurisdiction is that a plaintiff who sues for damages for personal injuries waives the right to privacy that they would otherwise enjoy over their medical condition.

The court in McGrory further found that the plaintiff must "not unfairly and unreasonably" impede the defendant in the preparation of its defence by refusing to submit to a medical examination.

Simons J said that it logically follows from the phrase "not unfairly and unreasonably" that the courts must engage in a balancing exercise whereby a defendant's right to defend a claim against it must be balanced against the likelihood of potential interference with a plaintiff's rights, including the right to privacy, confidentiality, and bodily integrity.

With reference to the decision of the Court of Appeal in Ryan v Dengrove DAC, Simons J went on to articulate a two-limb test to guide the court's consideration of whether it should exercise its jurisdiction to stay substantive medical-negligence proceedings until such time as a plaintiff agreed to undergo medical examination.

The first limb of the test is that the court must ascertain the relevance or materiality of the requested examination. If the examination is intended to elicit information that is required for the proposed defence, then the court may be so satisfied that the examination is relevant and material to an issue of controversy between the parties.

The second limb involves the court engaging in a balancing exercise in which the court must weigh the likely relevance or materiality of the results of the medical examination against the potential interference with the plaintiff's rights to privacy, confidentiality, and bodily integrity.

The court must assess the extent to which the outcome of the medical examination is likely to advance the moving party's case or to impair the opposing party's case.

Doctor, doctor

In applying this test to the facts before him, Simons J began with an assessment of the evidence before the court.

The only expert medical evidence was in the form of three reports prepared by the defendant's consultant clinical and biochemical geneticist, comprising a principal report and two further supplemental reports that expressly addressed the safeguarding concerns raised by the plaintiff and her parents about agreeing to the genetic testing.

The reports explained why genetic testing was relevant to the case (that it was suspected that the plaintiff's presentations had a genetic component) and why it was recommended that the plaintiff and both of her parents submit to the testing (in order to enable parental comparison at interpretation stage).

No expert medical evidence had been submitted on behalf of the plaintiff. 

On the basis of the information before the court, the latter concluded that the defendant had discharged the onus upon it to demonstrate that results of the genetic examination and testing proposed would go to resolving issues in controversy between the parties. Accordingly, the first limb of the test had been satisfied.

Simons J moved on to consider the second limb of the test, involving the balancing of the relevance or materiality of the results of the medical examination, as weighed against the potential interference with the plaintiff's rights to privacy, confidentiality, and bodily integrity.

I don't need no doctor

Simons J began his considerations by addressing one of the main arguments advanced by the plaintiff – that the proposed genetic testing did not fulfil the criterion of relevance.

The plaintiff argued that, because the defendant admitted certain failures in assessment and diagnosis in February 2020, on the basis of an 'indivisible injury' principle, the plaintiff was entitled to recover as against the defendant for all of the physical and cognitive impairments experienced by her.

However, Simons J noted that, crucially, the defendant made no admissions as to the impacts of the failures that it accepted occurred.

The judge went on to say that an 'indivisible injury' argument only arises where a negligent act has been found, on evidence, to have contributed to an injury, but the precise extent of that contribution cannot be determined.

Such an argument could not be advanced here because, as Simons J observed, no medical evidence had been placed before the court that would allow for even a preliminary assessment of whether the plaintiff had a realistic prospect of relying on the 'indivisible injury' principle.

On the basis of the only expert evidence that was actually before the court, in the form of the reports of the defendant's consultant clinical and biochemical geneticist, Simons J was satisfied that the developmental delay, early onset obesity, dysmorphic features, and ventriculomegaly complained of by the plaintiff likely had a genetic basis.

The court was, therefore, able to conclude that the proposed genetic examination and testing sought by the defendant was not only relevant, but that the results would likely have some meaningful bearing on the outcome of the proceedings.

Medicine man

The plaintiff submitted that she had previously undergone genetic investigations, which had come back as negative and, therefore, it was not necessary or appropriate for the court to order genetic testing in the circumstances.

Once again, Simons J was satisfied by the evidence that had been put forward by the defendant's consultant geneticist as to why this previous testing was incomplete.

The previous testing had looked at only two of more than 8,000 known genetic conditions, and did not include taking samples from the plaintiff's parents, which would allow for 'gold standard' comparative analysis.

The court then moved on to consider the rights of the plaintiff and her parents that might be impeded by the genetic examination and testing sought by the defendant. In particular, the court had regard to the privacy and autonomy concerns raised by the plaintiff.

On the basis of the expert evidence placed before the court by the defendant, Simons J accepted that the safeguarding measures put in place were adequate: examination would only proceed following pre-test counselling, informed consent would be sought, sampling would be by non-invasive buccal swab, referral could be made to a different consultant geneticist if the plaintiff and her parents so wished, the results would only be shared with the legal teams, and post-test counselling could be provided.

Doctor alibi

With respect to incidental and secondary findings, the judge was satisfied that incidental findings are only reported in rare circumstances, and secondary findings were not reviewed or reported unless indicated otherwise.

In any event, issues with respect to incidental findings would be addressed as part of the pre-examination counselling. Simons J was similarly satisfied with the data-security measures put in place and the standard of the laboratories at which the samples would be tested.

Finally, the judge considered the plaintiff's argument that it was inappropriate to make an order staying the proceedings, which, in effect, would require the plaintiff's parents to attend for genetic examination and testing when they were essentially third parties to the proceedings.

The judge dismissed this argument on the basis that the plaintiff's parents are "actively involved in the pursuit of the personal-injuries action", particularly where the plaintiff's father was acting as her next friend.

On the basis of the foregoing, as the genetic testing sought by the defendant would assist in resolving issues in controversy between the parties as weighed against the plaintiff's opposition to undergoing testing, Simons J concluded that the balance of justice lay in favour of staying the proceedings until such time as the examination could be carried out.

Given the novel nature of the examination that the defendant sought to have the plaintiff and her parents undergo in these proceedings, and the test set out by Simons J, this is a case that practitioners in the areas of medical negligence and personal injuries will likely need to become familiar with.

Gemma Hayes BL practises generally in civil law. She wishes to thank Michael Binchy SC for reviewing the article.