Neil Sacks and Corey Sax, of Howie, Sacks & Henry, recently successfully represented an infant Plaintiff in an action for damages for negligence for failing to timely diagnose a congenital disorder called Phenylketonuria ("PKU).

The infant Plaintiff was screened three times within the first month of birth. The first two PKU tests were positive, while the third test was normal; no further follow-up was arranged. At the age of three the infant Plaintiff was referred to a Developmental Pediatrician and was diagnosed with PKU.

The trial proceeded against the doctor on the issue of liability only as there was an agreement on the quantum of damages.

The Plaintiffs contended that the doctor fell below the standard of care in ordering the same test for the third time. The Plaintiffs also contended that the Provincial testing laboratory was negligent in the handling, testing and/or reporting of the infant Plaintiff's third blood sample. At trial, medical experts testified that, the laboratory erred in the third blood test and that the doctor should have ordered a more accurate diagnositc test for the third blood sample.

Both the Government Lab and the physician were found to be negligent and fault was apportioned 75 % to the laboratory and 25 % to the doctor. In deciding the Defendant doctor's liability, Justice Lax had this to say:

"The important question that [the defendant doctor] had to answer was whether it was safe to discharge this child from further follow-up. In my opinion, he could not answer that question without a diagnostic test. However reliable the Guthrie test was as a screening test, it could not answer the question. There was a readily available and inexpensive test that could. The reasonable and prudent conduct in these circumstances was to perform the test.

The Defendant doctor is appealing the decision.