N.J.S.A. 26:2-110 and -111, as they existed in June 2001 at the time of Jayson Sugden’s birth, required the New Jersey Department of Health to test all infants born in New Jersey for “hypothyroidism, galactosemia, phenylketonuria, and other preventable biochemical disorders which may cause mental retardation or other permanent disabilities” and “ensure that treatment services are available to all identified individuals.”
Jayson was born on Sunday, June 10, 2001, at Riverview Medical Center. His blood was drawn for testing on Monday, June 11 and arrived at the Department’s lab to be tested on Thursday, June 14. Jayson had been released from the hospital two days before.
Per a lab report dated Tuesday, June 19, Jayson tested positive for galactosemia, “a rare genetic metabolic disorder in which babies are born without the ability to convert the milk sugar, galactose, into glucose (the form of sugar used by the body for energy).” Although the Department thereafter took steps to coordinate Jayson’s treatment, including securing him an appointment at Children’s Hospital of Philadelphia with a physician specializing in galactosemia, plaintiffs alleged in their complaint that the Department was negligent in failing to report the positive test result to them in a timely manner, failing to properly advise them on the need for early analysis and treatment of the disorder, and failing to have adequate policies and procedures in place to track and follow up on blood samples and test results, all of which contributed to Jayson’s injuries and permanent disability.
N.J.S.A. 59:6-4 of the New Jersey Tort Claims Act provides immunity to public entities for injuries caused by the failure to make an adequate physical or mental examination, “[e]xcept for an examination or diagnosis for the purpose of treatment.”
The Superior Court of New Jersey Appellate Division (“New Jersey Appellate Court”) stated in its unpublished Per Curiam opinion dated July 21, 2023 that it rejected the plaintiffs’ argument that the testing of newborns “for biochemical/congenital disorders is an examination or diagnosis for the purposes of treatment,” making it an
exception to the immunity afforded the State under N.J.S.A. 59:6-4. The New Jersey Appellate Court agreed with the trial court that the statutory language in N.J.S.A. 26:2-111 did not mean the Department had “automatically undertaken treatment for every newborn diagnosed with one of the 55 different disorders for which they are routinely screened.” Instead, the statute plainly directed the Commissioner only to “make services available to treat those infants diagnosed with a disorder, which is precisely what the Department did when it referred Jayson to CHOP for treatment.” Furthermore, a “physical examination” involves the actual testing of a patient, and an “adequate physical examination” under N.J.S.A. 59:6-4 includes reporting the results of the examination and thus falls within the purview of N.J.S.A. 59:6-4’s immunity.
If you or a loved one may have been injured (or worse) as a result of negligence involving genetic testing in New Jersey or in another U.S. state, you should promptly find a New Jersey medical malpractice lawyer, or a medical malpractice lawyer in your state, who may investigate your genetic testing malpractice claim for you and represent you or your loved one in a genetic testing medical malpractice case, if appropriate.
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