The High Court yesterday dismissed an action for damages by a Dublin couple over the retention by the National Maternity Hospital of some of the organs of their stillborn daughter. The decision may have implications for similar cases. Mary Carolan reports.
Bridget and Terence Devlin are facing a legal bill of more than €200,000 after Mr Justice O'Donovan ruled they had not established a cause of action against the Holles Street hospital and awarded costs against them.
He put a stay on the costs order in the event of an appeal.
During a seven-day hearing, the Devlins, of Ballyogan Crescent, Carrickmines, had claimed the organs of their child Laura, who was stillborn at Holles Street on May 30th, 1988, were retained without their knowledge after a post-mortem to which, they claimed, they had not consented.
The Devlins initiated their proceedings in July 2002.
The hospital had disputed the claim and argued that there were no consent forms for autopsies on stillborn children in 1988.
It also pleaded that Mrs Devlin did consent to the post-mortem. It further argued that it was general practice within hospitals at the time not to discuss the retention of organs with parents.
Yesterday, Mr Justice O'Donovan granted an application by Mr Charles Meenan SC, for the hospital, brought at the close of the Devlins' case and prior to any evidence called on behalf of the hospital, to dismiss the action.
The judge agreed Mrs Devlin had failed to establish all the grounds necessary to sustain her claim for damages for post-traumatic stress (PTS) - or in legal terms, "nervous shock" - arising from the retention of organs.
He also found Mr Devlin had failed to adduce any evidence to support a claim that he had suffered injury due to the organs' retention.
While the judge accepted that, as a result of learning of the retention of the organs of her daughter by the hospital, Mrs Devlin had suffered post-traumatic stress (PTS), he found she had failed to establish that the PTS was as a result of an actual or apprehended physical injury to herself or another person.
It followed, "I regret to say", that all the circumstances to ground a claim for damages for nervous shock were not established and the claim must fail on that account, the judge said.
Mrs Devlin was not in court yesterday. Mr Devlin, who did attend, said he was "a bit shocked" at the decision.
He added that he and his wife wished to secure legal advice before deciding whether to appeal to the Supreme Court.
In his ruling, the judge stressed he had heard only the case for the Devlins and, for the purposes of Mr Meenan's application, he must assume the truth of the evidence he had heard.
The Devlins made two complaints - (1) that a post-mortem was carried out on Laura without their consent and against their wishes and (2) that some of the child's organs were retained.
On the evidence to date, he must assume the Devlins had not consented to the autopsy, did not know the organs would be removed and had not learned of their removal until May 2000 when they received a letter to that effect from Mr Declan Keane, Master of the National Maternity Hospital.
He must also assume that on learning of the retention of the organs, Mrs Devlin suffered PTS.
Accepting Mr Meenan's argument that Mr Devlin had not established that he personally had suffered any injury due to the actions of the hospital, the judge rejected arguments that he should infer Mr Devlin had suffered distress from watching his wife suffer.
The judge also found that the Devlins' claim regarding lack of consent to the post-mortem was statute barred - brought outside the three-year legal time limit for making such a claim.
While he must accept the autopsy was done without their consent, the Devlins were aware in 1988 that it had been performed and were angry about that.
He didn't accept that, because they claimed a nurse at the hospital had told them it was standard policy to do an autopsy on a stillborn child, this meant the statute of limitations did not apply. No action was taken until 2002.
However, the judge rejected the hospital's argument that the claim regarding the retention of organs was statute barred.
He accepted, for the purposes of his ruling, that the Devlins were not aware of organs being retained until they got the letter from Master Keane in March 2000.
Mr Meenan had also submitted the claim should fail because the Devlins had not demonstrated their loss was recoverable.
In light of practice in the 1980s, the hospital had no duty to tell the parents the organs were retained, he contended.
Rejecting that submission, the judge said, whatever the practice was in the 1980s regarding consent to post-mortems, he had heard no evidence regarding what happened when consent was not given.
It had been agreed that consent should be given and there was no consent here. He must therefore conclude, for this application, that the hospital was not entitled to do a post-mortem and equally not entitled to remove organs.
The hospital had a duty not to interfere with the remains of the dead child and it was probable that such interference would result in distress. However, the judge said he accepted Mr Meenan's argument that this was a case in which the grounds necessary to sustain a case for damages for nervous shock had not been established.