Court rejects organ retention damages claim

The Supreme Court has ruled a Dublin couple is not entitled to damages from the National Maternity Hospital for nervous shock over the retention in 1988 of some of the organs of their stillborn daughter.

However, it refused the hospital's application to award costs against the couple and ruled the parties should pay their own costs.

The three-judge court stressed yesterday that its judgment on the proceedings by Bridget and Terence Devlin, of Ballyogan Crescent, Carrickmines, was "a decision of law" and "should not be read as an endorsement" of the now abandoned practice of the hospital in the 1980s and which was based on "paternalistic and inappropriate policies".

Mrs Justice Susan Denham said the issue in the case was whether Mrs Devlin was entitled to damages for "nervous shock" arising from the removal of the organs of the couple's stillborn daughter, Laura, without consent.

The Supreme Court accepted that on learning in 2000 that the organs had been retained in 1988, Mrs Devlin suffered shock and post-traumatic stress, which was induced by the information about retention of the organs.

However, because the nervous shock sustained was not as a result of actual or physical injury to Ms Devlin or any other person, the court ruled Ms Devlin was not entitled to sue for damages. It noted grief or sorrow was not a basis to recover damages and also upheld the High Court's decision that Mr Devlin had not proved any injury or loss to himself as a result of the organ retention.

Concluding the court's judgment, Mrs Justice Denham said the case arose from a time when a paternalistic attitude to parents was "endemic in hospitals". The hospital's practice in relation to carrying out postmortems on children without parents' consent was "rooted in times long past".

"While it may have been thought kind not to trouble or disturb the parents, the decision to be made as to a postmortem and their child's body is theirs to make," she said.

She noted postmortems usually involved the taking of organs to identify the cause of death and the nature of the illness and might be of importance to the family at the time and in the future and to the community in general. They were also important in assisting in education, training and research.

"In the midst of the dreadful tragedy that is a child's death, parents and the community should be fully informed of the benefits which flow from the authorisation by parents to permit a postmortem."

The Chief Justice, Mr Justice John Murray, said the case arose from a serious situation that affected a lot of people when it emerged there was a professional practice by some hospitals since found to be unsound. In those circumstances, the court would not apply the normal rule that costs go to the winning side and so would make no order as to costs.

In their proceedings, the couple had claimed the organs of their daughter, who was stillborn on May 30th, 1988, were retained without their knowledge after a postmortem to which, they claimed, they had not consented.

The hospital disputed the claim and argued there were no consent forms for autopsies on stillborn children in 1988.