High Court dismisses organ retention case

The High Court has dismissed an action for damages brought by a couple over the retention by the National Maternity Hospital of the organs of their two dead children - a daughter who was stillborn in 1996 and a son who died hours after he was born prematurely in 1998.

However, while dismissing the claim, Mr Justice Michael Peart said he believed the case was not, from the point of view of Angela O'Connor and Jason Tormey, about the recovery of damages.

He had little doubt that no amount of damages "would be even half as useful at easing their feelings of anger and distress as would a forthright, sincere and appropriately tendered apology for the anger, hurt and distress caused, however unintentionally at the time, by the retention of their babies' organs".

However, the legal system was not conducive to such apologies as they might be seen to acknowledge fault on the part of the defendants. A meeting between the hospital and the couple in June 2000 appeared to be an effort to address their anger and hurt but it seemed to have failed to do so. "That is a pity."

The judge yesterday granted an application by senior counsel Jack Fitzgerald, for the hospital, to dismiss the claim on grounds that the couple, from Ballybrack, Co Dublin, had failed to establish a cause of action that could be compensated by damages.

He adjourned the case to June 29th when it is expected costs will be dealt with.

In a 30-page judgment, Mr Justice Peart said the court was asked to determine issues arising from "unspeakable tragedy". The couple had lost two children, a boy, Thomas, in 1996 and a girl, Angelica, in 1998. Between those two occasions of great sadness, Ms O'Connor had given birth to a daughter, Nicole, in 1997.

Although Nicole weighed just 3lb at birth and was born at 25 weeks, she had survived and is now seven years old. She suffered from mild cerebral palsy but was otherwise a healthy girl and, no doubt, "has brought great joy into her parents' lives".

The couple's legal claim arose from the fact that they had learned for the first time in spring 2000 that some of their dead children's organs were retrieved during postmortems at the hospital. This information had greatly distressed them and they took legal proceedings.

The hospital denied any wrongdoing. The judge said he wanted to acknowledge the sympathetic, humane and professional manner in which the defence case was handled by Mr Fitzgerald. He also said he hoped the couple would understand that nothing he said in his judgment meant the court had anything but the greatest sympathy for the great sadness and distress they had experienced and no doubt still experienced.

The judge said the hospital pleaded that consent to the post-mortem on baby Thomas was given by both parents. However, the evidence was that Ms O'Connor did not remember and Mr Tormey had said he did not consent. A consultant psychiatrist was told they had consented to the postmortem.

The hospital had returned the organs in 2000 and they were buried. Neither plaintiff had suffered a recognisable psychiatric illness, it was pleaded.

The judge agreed that the plaintiffs had not offered the evidence necessary to ground claims for negligence, misrepresentation and breach of contract against the hospital. He said they had not called evidence that either had suffered any recognised psychiatric illness and nor had they called expert evidence, except on the issue of damages. They had also failed to call evidence of any financial loss.