Genomic testing has emerged in recent years as a useful method for determining or disproving the cause of an injury. This development has negative implications for individuals, both in relation to the prospects of a successful claim and their privacy.
What is genomic testing?
Genomics is an emerging area of medicine which studies the structure, function and evolution of genomes. A genome is a cell or organism's complete set of genetic material. Genomic testing involves the analysis of genomes to identify gene alterations in order to predict or diagnose health conditions. Genomic testing can be used to identify a broad range of conditions such as cancer, neurodevelopmental disorders and infectious diseases.
How is being used in litigation?
Genomic testing has become a useful tool when a Defendant seeks to find an alternative cause for an injured person's claimed disability.
As determined by Court Rules, a Defendant can make a request to the Court that the injured person attends appropriate examinations by a medical expert or experts. This can include a request for the injured to undergo genomic testing. Although an injured person cannot be forced to undergo genomic testing, if they refuse and that refusal is considered unreasonable by the Court, then the injured person's claim can be permanently halted.
Case study: KF (by her tutor RF) v Royal Alexandra Hospital for Children  NSWSC 891
KF, a minor, alleged that there had been an unreasonable delay by the Royal Alexandra Hospital for Children in diagnosing and treating hypoglycaemia and as a result of that delay, she suffered seizures and brain damage. Her alleged resulting injuries included developmental delay and a language disorder. The Hospital argued that these alleged injuries were not caused by the delay in diagnosis of hypoglycaemia and were instead likely to be genetic disorders.
The proceeding had been on foot for eight years when KF was requested to undertake genetic testing to confirm whether there was a possible genomic cause for her disorder.
This request for testing was opposed by KF's legal team on the basis that it was unreasonable to request such an examination eight years into the proceeding and was therefore just a fishing expedition .
Despite her protestations, the Court granted the request for testing.
What this case, and similar cases that followed, demonstrate is that it has been relatively easy for a defending party in a Court case to have requests for genomic testing granted.
The use of genomic testing in legal cases across Australia to disprove claimed injuries is increasing. If this trend continues, access to compensation for injured persons will become more difficult. However, Courts have not always accepted the results of genomic testing as evidence.