Preventing the Discovery of Plaintiff Genetic Profiles by Defendants Seeking to Limit Damages in Personal Injury Litigation

34 Pages Posted: 5 Feb 2010

See all articles by Mark A. Rothstein

Mark A. Rothstein

University of Louisville - Institute for Bioethics, Health Policy, and Law; University of Louisville - Louis D. Brandeis School of Law

Date Written: September 1, 1996

Abstract

Imagine the following situation: Dr. Jane Smith is a thirty-five year-old neurosurgeon who entered private practice three years ago upon completion of her training. She has an annual income of $200,000. One day, while crossing the street from the doctors' parking lot to the hospital, she is run over by a Zippy Express delivery truck, whose unlicensed, intoxicated driver was speeding to a delivery and failed to stop for a red light. As a result of the accident, Dr. Smith has become quadriplegic and will be unable to perform surgery again.

In a negligence action against Zippy Express, a key component of Dr. Smith's economic damages is her lost income. Assuming she would have been able to work for thirty more years, with an income of $200,000 per year, this would amount to six million in current dollars, exclusive of projected earnings increases, merely for lost income. Suppose, however, that Dr. Smith is in the unaffected, presymptomatic stage of Huntington's disease, amyotrophic lateral sclerosis, or some other late-onset genetic disorder. Further suppose that experts will testify that, in all likelihood, irrespective of the accident, she would not have been able to practice medicine beyond age forty-five and that her life expectancy is fifty years. Applying traditional damages principles, this information would reduce her recovery for economic injury by at least four million dollars.

Zippy Express and its insurers therefore would have a great economic incentive to discover information about Dr. Smith's genetic profile and to introduce this information at trial. Should the defendants be able to discover this information by obtaining access to Dr. Smith's medical records? Should they be able to obtain a court order directing Dr. Smith to submit to genetic testing? Should it matter whether genetic testing previously had been performed on Dr. Smith or whether there was something in her family or medical history to suspect a genetic disorder? Should it matter whether Dr. Smith was suspected of having a genetic risk of a monogenic disorder, such as Huntington's disease, or a multifactorial disorder, such as cancer? What effect, if any, should be given to the penetrance, variable expressivity, and treatability of the disorder? Should it matter if Dr. Smith objects to genetic testing?

Keywords: genetics, discovery, personal injury litigation, genetic information, forensics, automony, confidentiality

JEL Classification: K31, K32

Suggested Citation

Rothstein, Mark A., Preventing the Discovery of Plaintiff Genetic Profiles by Defendants Seeking to Limit Damages in Personal Injury Litigation (September 1, 1996). Indiana Law Journal, Vol. 71, No. 4, 1996. Available at SSRN: https://ssrn.com/abstract=1547253

Mark A. Rothstein (Contact Author)

University of Louisville - Institute for Bioethics, Health Policy, and Law ( email )

Louisville, KY 40202
United States

HOME PAGE: http://www.louisville.edu/bioethics

University of Louisville - Louis D. Brandeis School of Law ( email )

Wilson W. Wyatt Hall
Louisville, KY 40292
United States

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