Brain-Damaged Child’s Parents Can’t Be Tested

(CN) - Doctors accused of ignoring signs of fetal distress cannot force the parents of a baby who sustained permanent brain damage to undergo genetic testing, a federal magistrate ruled.

Though Heather Crawford D.O. and Beverly Tew M.D. noted signs of fetal distress when Tamika Young was in labor in 2009, they did not "promptly and properly" deliver baby J.Y. by C-section, Young claims.

J.Y., now 6 years old, was delivered in a "severely asphyxiated" state, "sustained a brain bleed," and was hospitalized for five months after delivery, his mother claims. Young sued the federal government, Cooper University Hospital and three doctors in 2012. One of the doctors, Shaurin Patel M.D., has since been dismissed as a defendant.

The allegedly negligent delivery caused J.Y. to "suffer great physical pain," permanent brain damage and other injuries, accorded to the amended complaint. Young seeks an unspecified amount of damages.

But the defendants say there was no "deviation from approved standards of medical and/or nursing care," and that J.Y.'s injuries were caused by "pre-existing medical, genetic, and/or environmental conditions, disease, or illness," according to court filings.

A human genetics expert says that testing of J.Y.'s DNA revealed "a microdeletion" within a specific chromosome "resulting in the deletion of at least three genes," which, "if not inherited, may well explain" the child's mental and physical injuries, court records show.

The doctors and hospital moved to compel J.Y.'s mother and father, Bruvon Fuller, to submit to genetic testing. While Young and Fuller opposed the motion, the government took no position.

U.S. Magistrate Judge Ann Donio denied the motion Sept. 30, finding that a federal civil procedure rule, under which a court may order a party whose mental or physical condition is at issue to submit to an exam, does not apply to nonparties like Fuller.

"Although conceding that Mr. Fuller is 'not a named party,' defendants attempt to evade Mr. Fuller's nonparty status by describing him as 'interested' in the litigation," Donio wrote.

But the doctors and hospital "do not proffer any specific allegations or case law" showing that Fuller's "interest" renders him a "party" under Federal Rule 35, the judge found.

Young's genes need not be tested either, according to the ruling.

"A number of courts have rejected expanding Rule 35 to a parent suing on behalf of a child," Donio wrote.

The judge added that the civil procedure rule does not allow a court to order representatives or guardians of minor plaintiffs to undergo genetic testing.

"The court further rejects defendants' attempt to characterize Ms. Young as a party based on her purported 'financial interest' in the litigation," Donio wrote. "Ms. Young's purported interest in obtaining a monetary judgment for her child does not render her within the scope of Rule 35."

The judge granted Young and Fuller's motion for a protective order precluding any genetic testing.

Matthew Reilly, a spokesman for the U.S. Attorney's Office in New Jersey, and Derek Layser, one of Young's attorneys, both declined to comment on the ruling.

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