New Australian research suggests that a significant proportion of cerebral palsy cases could be caused by genetic factors as opposed to birth trauma. While the rate of caesarean deliveries in Australia has increased significantly over the last 50 years (from 5% to 34%) there has been no change in the proportion of children affected by cerebral palsy. Researchers from the University of Adelaide’s Robinson Research Institute analysed the DNA of 183 children with cerebral palsy (and, where possible, their parents’ DNA) and concluded that 14% of the cases were likely to have been caused by either inherited or spontaneous genetic mutations. They believe that with further research and advances in genetic sequencing, it will be established that genetic causes account for up to 45% of cerebral palsy cases.
Recent court decisions
This area of research is proving influential in the conduct of cerebral palsy claims, as demonstrated by two recent interlocutory decisions of the New South Wales Supreme Court. The decisions relate to a matter involving a plaintiff, born in 2003, who suffers from dystonic/spastic cerebral palsy, severe intellectual disability and epilepsy.1 The plaintiff alleged that his condition was caused by trauma sustained in a motor vehicle accident which had occurred when his mother was approximately 25 weeks pregnant.
The defendants, the driver and owner of the motor vehicle involved in the accident, made an application for the plaintiff and his parents to provide blood tests for the purpose of genetic testing. Such testing was considered important following the service of a report by Professor Alastair MacLennan of the Adelaide University cerebral palsy research group. According to Professor MacLennan, there was an increasing understanding that antenatal causes of white matter damage included congenital abnormalities and damage acquired following perinatal infection. On the basis of Professor MacLennan’s report, the defendants were successful in obtaining orders that the plaintiff and his parents supply blood samples for the purpose of genetic testing. The Court ordered that such testing occur given that there was sufficient evidence that the proposed testing had the capacity to assist in relation to the disputed issue of causation.
When the testing did not advance the defendants’ position, the defendants obtained additional expert evidence suggesting that congenital cytomegalovirus (CMV) is best detected using urine, saliva and blood taken within three weeks of birth and that such samples could be obtained by accessing and testing the plaintiff’s Guthrie card (a card used to store dried blood spots routinely obtained from all newborns for the purpose of screening for a range of conditions). On the basis of this evidence, the defendants succeeded in obtaining an order that the plaintiff’s Guthrie card be tested for pre and post-natal congenital infections and conditions including CMV.
As of the time of writing, the results of these tests are unknown.
These decisions, and the advances that are being made in cerebral palsy research, highlight the complexity of the causation issues that are often inherent in birth trauma litigation. Given the high quantum of such claims, defendants are increasingly going beyond seeking evidence to simply rebut plaintiffs’ causation claims, and attempting to provide the Court with evidence of their own explanations for these tragic outcomes.