Yesterday's judgment will make it difficult for other parents of children whose organs were retained to sue, writes Carol Coulter.
Parents attempting to sue for damages arising out of the retention of their children's organs by maternity hospitals will have a high bar to cross following yesterday's High Court judgment.
There are about 4,000 similar cases awaiting hearing by the courts. It is not clear how many of them will go ahead in the light of yesterday's judgment.
In dismissing the case brought by the parents of two babies who died prematurely, one stillborn, the other within hours of birth, Mr Justice Michael Peart said no evidence had been brought forward concerning the hospital's duty of care towards the parents in seeking consent to postmortems on their children. Therefore, there could be no finding of a breach of a duty of care.
He also found that no expert evidence had been brought forward on the manner in which such consent should be sought.
Therefore, there was no basis for claiming misrepresentation on the part of the hospital in seeking the consent, without spelling out what was involved in a postmortem.
He said that no evidence had been brought forward on what was recognised as best practice in this area.
If other parents are to succeed in other cases, they will now have to show that there was a norm of best practice, and that the hospital concerned breached it. He also set the standard for what constitutes harm to a plaintiff in these circumstances.
While both the mother and father were clearly greatly distressed by what had happened, Mr Justice Peart found that neither suffered from a definable psychiatric illness as a result.
"In order to recover compensation [it is necessary] that what was experienced be within the categories of illness recognised by law as attracting damages," he said.
He acknowledged that both parents were very deeply upset, and that Angela, the mother, may have been "traumatised", but he found that this was associated with the death of her father as well as the deaths of her children and the subsequent discovery that their organs had been retained.
Justice Peart acknowledged that the legal system was not best suited to assuaging the pain of such an experience.