Illinois Appellate Court Rules Order For Genetic Testing Of Parents Was Premature In Birth Injury Lawsuit

The Appellate Court of Illinois Fourth District (“Illinois Appellate Court”) held in its opinion filed on May 4, 2021 “without any findings or analysis for this court to review concerning the parental testing, we find it would be premature to consider the correctness of the decision to order Brooke to submit to a blood draw for the purpose of Trio WES analysis, which, from the record presented and case law cited, appears to require a blood draw from both biological parents. We conclude the discovery order was granted without a sufficient underpinning. A more thorough examination is necessary. We vacate the discovery order and remand for further proceedings.”

The Underlying Claim

Brooke, by and through her biological parents, Krista and Skylar, asserted claims of medical negligence and lack of informed consent for alleged acts and omissions during labor and delivery, which caused her to suffer severe hypoxic ischemic encephalopathy, subgaleal hemorrhage, a fractured clavicle, and a right tension pneumothorax.

Pursuant to Rule 215, the defendants filed a pretrial motion to compel the plaintiffs to submit to a blood draw for the purpose of Trio WES analysis, a type of genetic testing. The defendants’ geneticist filed an affadavit averring that Trio WES analysis, utilizing child and parents blood sampling, “is the optimal means of ascertaining whether Brooke has a genetic etiology for her current impairments.”

Rule 215 provides: “In any action in which the physical or mental condition of a party or of a person in the party’s custody or legal control is in controversy, the court, upon notice and on motion made within a reasonable time before the trial, may order such party to submit to a physical or mental examination by a licensed professional in a discipline related to the physical or mental condition which is involved.”

The plaintiffs argued that the circuit court did not have the authority under Rule 215 to order Krista and Skylar to submit to a blood draw for the purpose of Trio WES analysis because they were not parties within the meaning of Rule 215 and because their physical conditions were not in controversy. In support of their argument suggesting they were not parties within the meaning Rule 215 and as an alternative request for relief if the Illinois Appellate Court rejected their argument, the plaintiffs contended that Krista and Skylar could avoid the ordered testing by simply withdrawing their claims under the Family Expense Act and seeking the appointment of a guardian to pursue Brooke’s claims. The plaintiffs further argued that without a sample from Krista and Skylar, the record fails to establish the requested testing of Brooke would be reasonably likely to lead to a medical explanation for her injuries, as the testing is meaningless without samples from both biological parents.

The Illinois Appellate Court stated that given the arguments presented to the circuit court, the circuit court was required under the plain language of Rule 215 to first address whether Krista and Skylar were parties whose physical conditions were in controversy. “Despite the novelty of the issue, the circuit court provided this court with no analysis or findings as to whether Krista and Skylar were parties whose physical conditions were in controversy. This is particularly concerning where the case law relied upon by the parties in support of their respective positions on appeal stem, with one exception, from decisions made by federal and state trial court judges interpreting rules similar to Rule 215.”

The Illinois Appellate Court held: “For this court to address the issue without any analysis or findings by the circuit court would not serve the interests of justice and the development of good law. Further, without any findings or analysis for this court to review concerning the parental testing, we find it would be premature to consider the correctness of the decision to order Brooke to submit to a blood draw for the purpose of Trio WES analysis, which, from the record presented and case law cited, appears to require a blood draw from both biological parents. We conclude the discovery order was granted without a sufficient underpinning. A more thorough examination is necessary. We vacate the discovery order and remand for further proceedings.”

The Illinois Appellate Court also held: “Given the record presented, we find plaintiffs’ counsel’s refusal to direct plaintiffs to comply with the discovery order was a good faith effort to test the correctness of the order on appeal. We vacate the contempt order.”

Source Kallal v. Lyons, 2021 IL App (4th) 200319.

If you or a loved one have suffered serious harm as a result of a birth injury in Illinois or in another U.S. state, you should promptly find an Illinois medical malpractice lawyer, or a medical malpractice lawyer in your state, who may investigate your birth injury medical malpractice claim for you and represent you or your loved one in a birth injury medical malpractice case, if appropriate.

Click here to visit our website or call us toll-free in the United States at 800-295-3959 to find medical malpractice attorneys in your U.S. state who may assist you.

Turn to us when you don’t know where to turn.

This entry was posted on Friday, May 28th, 2021 at 5:23 am. Both comments and pings are currently closed.

placeholder

Easy Free Consultation

Fill out the form below for a free consultation or contact us directly at 800.295.3959.
  • Please enter the correct answer to this math problem.
  • This field is for validation purposes and should be left unchanged.

    Easy Free Consultation

    Fill out the form below for a free consultation or contact us directly at 800.295.3959