In 1995, Matthew McDonald was born at Campbelltown Hospital under the care and management of obstetrician Dr S Ng. He is now 23 years of age.
Matthew’s mother, Prudence, alleged that Matthew suffered a hypoxic event sustained during his birth causing him severe injury. She and Matthew both commenced proceedings in the Supreme Court of New South Wales against both Dr Ng and the hospital, in negligence and claimed damages.
They allege that as a result of hypoxia, Matthew suffered hypoxic damage to his brain, and that Matthew’s evolving or acquired microcephaly, developmental delay, intellectual disability and cortical blindness are due to the birth-related asphyxia. They also allege that the hypoxia which caused damage to the brain was the result of a breach of duty of care by the Dr Ng and the hospital, that the hypoxia-caused brain damage is from the mismanagement in the period leading to the final stage of birth, the mismanagement in the final stage of birth, or a combination of these.
Dr Ng and the hospital deny any breach of their duty of care. They argue that even if there was a breach of duty of care and it resulted in hypoxia, the hypoxia did not cause damage to the brain. Rather, Matthew’s injuries and disabilities are congenital and due to a genetic abnormality.
By way of application, the doctor and hospital sought an order from the Court that both Matthew and his mother undergo blood tests for the purposes of whole genome testing and sequencing.
In opposing the application, Matthew and his mother argued that the proposed genetic testing is still at the research stage and that without the father being testing, the results would be of a lower yield.
Her Honour Harrison AsJ noted that the central issue in dispute will be causation and that the claim for damages is substantial, being in excess of $13 million. Further, that the genetic testing is directed to the question of causation. Her Honour found that there is sufficient evidence that the proposed whole genome testing has the capacity to throw light on causation, and that whether Matthew’s injuries and disabilities are as a result of a genetic abnormality is an issue of substance which is likely to be illuminated by the results of the whole genome testing [76].
Accordingly, her Honour made an order pursuant to UCPR 23.4 that Matthew and his mother each provide a blood sample for the purposes of whole genome testing.
Prudence McDonald v Ng; Matthew McDonald by his tutor Prudence McDonald v Ng [2018] NSWSC 1050.
For more information on the above contact Joe Bonura on (02) 4626 5077 or jbonura@marsdens.net.au.
This article first appeared in the CCH Australian Tort, Personal Injury, Health and Medical Law Tracker and is reproduced in full with permission from CCH, a division of Wolters Kluwer Australia: www.wolterskluwer.cch.com.au
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