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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> O'Connor & Anor v. Lenihan [2005] IEHC 176 (9 June 2005) URL: http://www.bailii.org/ie/cases/IEHC/2005/H176.html Cite as: [2005] IEHC 176

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Neutral citation no. [2005] IEHC 176

THE HIGH COURT

Record Number: 2000 No. 13001P

Between:

Angela O'Connor and Jason Tormey

Plaintiffs

And Michael Lenihan

Defendant

Judgment of Mr Justice Michael Peart delivered on the 9^th day of June 2005:

On occasions the Court is required to determine issues arising from unspeakable tragedy, the impact of which can be fully understood and appreciated only by those whose misfortune it has been to go through it.

This is such a case, for these plaintiffs are the mother and father respectively, of firstly, of a baby boy, Thomas, who was born at 25 weeks gestation on the 25^th February 1996, but who died some fourteen hours post-delivery, and secondly, of a baby girl, Angelica, who was delivered stillborn, again at 25 weeks, on 20^th August 1998. Between these occasions of great sadness, a daughter, Nicole, was born in 1997, who although weighing only 3lbs at birth, and once again born at 25 weeks, survived and is now seven years old. She suffers from mild cerebral palsy, but is otherwise a healthy girl, and no doubt has brought great joy into her parents' lives.

At the time of the birth of their first baby, Thomas, the first named plaintiff ("Angela") was 18 years of age, and the second named plaintiff ("Jason") was aged 20.

Their claims arise from the fact that in the spring of the year 2000 they learned for the first time that some of the organs retrieved from their deceased children during post mortem examinations at the National Maternity Hospital, Holles Street, Dublin, had been retained following those examinations. This information has distressed them greatly, and they now seek damages under a number of headings for, according to the Statement of Claim "personal injuries, anxiety, distress and annoyance, loss and damage……… for misrepresentation, breach of contract, negligence, breach of duty, breach of bailment, conversion, detinue and trespass to the person."

The defendant denies that there has been any wrongdoing on the part of the servants and agents of the hospital, as pleaded by the plaintiffs, and further denies that the plaintiffs have been caused by them to suffer in the manner alleged in the Statement of Claim. It is also submitted by the defendant that even if the plaintiffs suffered anything coming within the legal concept of injury, that injury is not a recognised psychiatric ailment, and therefore cannot sound in damages.

It would be easy for the plaintiffs to consider that the Defence pleading in these proceedings is a heartless and unsympathetic document, leading only to exacerbation of the distress which they have experienced over the years since they discovered that the some organs of their deceased children had been retained. They cannot be expected to appreciate the purely legal nature of a pleading document in which issue is formally joined with the pleas set forth in the plaintiffs' Statement of Claim.

The Court, however, wants to acknowledge the sympathetic, humane and, at the same time, professional manner in which the defendant's case was handled by their Counsel, Jack Fitzgerald SC, particularly during the inescapable, necessary but difficult task of conducting a cross-examination of both of the plaintiffs while they were giving their evidence.

He also explained to the plaintiffs that the defence of their claims by his clients did not mean that they did not sympathise with, and fully understand and appreciate the plaintiffs' feelings.

No greater effort, in my view, could have been made by Mr Fitzgerald, and there is no doubt in my mind that his careful handling of this difficult matter ensured, in so far as it is possible at all, that the plaintiffs' experience of being in Court for their case did not add unnecessarily to the distress which they have already endured both from the deaths of their children, and the matters arising subsequently. Indeed, the plaintiffs' own Counsel, Joseph Revington SC acknowledged as much on their behalf during the proceedings.

I hope that the plaintiffs also understand that nothing I say in my judgment, or perhaps the rather legalistic way in which the issues need to be examined and determined by the Court, should result in them considering that the Court has anything but the very greatest sympathy for the great sadness and distress which they have experienced, and no doubt still experience. It is often said that judges live in ivory towers away from the everyday experiences of the lives of ordinary people. That is in my view a cliché too easily spoken, and which underestimates, indeed denies, the capacity of a judge to be often moved greatly by the courage of many litigants. But it is part of the judicial function and duty, to remain detached from the emotion of the case so that the legal and factual issues can be analysed dispassionately, unaffected by sympathy felt for any party, so that justice may be administered fairly to all parties to the suit. I hope that Angela and Jason will understand this in the present case.

At the conclusion of the evidence adduced by the plaintiffs in support of their claims for damages, Mr Fitzgerald moved an application to have the plaintiffs' claims dismissed on the basis that no cause of action was disclosed, and that, in any event, no compensatable injury had been suffered by either of the plaintiffs, and that the defendant therefore had no case to answer.

I will deal with these submissions in due course. Before I do so I want to outline the relevant evidence given by and on behalf of the plaintiffs.

Factual Background:

The evidence of the first named plaintiff:

Re: Baby Thomas

The plaintiffs appear to have commenced their relationship around June 1994. Angela became pregnant sometime during second half of 1995. During her pregnancy she received regular medical attention, but on the 25^th February 1996 she went into early labour and was taken by ambulance immediately into Holles Street Hospital. Jason was with her while she was there. She stated that she was five to six months pregnant at the time. Her evidence is that she was brought immediately upon arrival into the labour ward whereupon she was given an injection which she stated was to assist baby Thomas with his breathing. Her doctor had advised this course of action. She cannot remember the names of any of the doctors who assisted her at this time.

Her baby was born and was immediately transferred to a Special Unit referred to as Unit 8. Baby Thomas weighed about 2lbs at birth. She recalls being brought back to a room, and that Jason was also in Unit 8 for a time, before he and his family returned home. She remained on her own, but later that night she went to Unit 8 on her own, where she found a number of nurses attending to baby Thomas who was not doing well. She contacted Jason whereupon he and his family returned to the hospital at about 1am. It appears that after he returned, he went to Unit 8 and came back down to Angela and told her that the medical staff wanted permission to turn off the machine to which baby Thomas was connected to assist his survival. She was told that this was because her baby had what she described as "no fight in him". She stated that the machines were turned off, and that baby Thomas passed away some time later, and while they were both present.

Some time after that they were asked whether a post mortem could be carried out in order to find out what had happened. She believes that it was a doctor rather than a nurse who asked them about the post mortem, and that there were some nurses present at the same time. This conversation took place just after baby Thomas had died, and lasted a few minutes, after which she went back downstairs to her room. When she was cross-examined by Mr Fitzgerald she was referred to the fact that in the Statement of Claim delivered in this case, it is pleaded at paragraph 5 thereof that they gave their consent not only to this post mortem being carried out, but also to any "other special medical examination by way of analysis, tests or otherwise of particular parts or contents of the body of their said son".

In reply, she replied:

"I agreed to the post mortem, but it wasn't explained that they were going to take organs out of the body and retain them."

I will return to this cross-examination in due course when dealing more generally with the evidence surrounding the consent to post mortem examination.

At any rate, on the morning following baby Thomas's death, she went home to organise his funeral, which was planned to take place a few days later.

She described the day of the funeral. She said that they went down to a small mortuary at the hospital where a priest said some prayers. She stated that she had given the nurses some clothes to be put on Thomas for his burial, and that he was placed in a small coffin. They then made their way with some of their family to Deansgrange Cemetery for the burial.

Baby Angelica:

While she was pregnant with Angelica, Angela was under the care of her General Practitioner. Again at about 25 weeks she went into premature labour and was brought urgently to Holles Street Hospital. Her sister and Jason accompanied her and on admission she was brought straight to a labour ward. After a number of hours she was told that there was no heartbeat and that her baby would be stillborn. Following delivery she was able to hold her baby for a while, following which she was removed, and returned later to remain near Angela in an adjoining room. On the following day, she recalls only that she spoke to a priest and then went home. They returned the next day with some clothes and to make arrangements for burial in Glasnevin Cemetery.

When cross-examined by Mr Fitzgerald in relation to whether she had given consent to a post-mortem for baby Angelica, she was referred to the fact that in the Statement of Claim it is pleaded that she and Jason gave their consent to a post-mortem examination and any other special examination by way of analysis, tests or otherwise of particular parts of the contents of the body. She replied just that she did not recall that at this point in time, and that she was in a state of shock on the day of the stillbirth. She was then referred to the fact that at some point she must have gone to her solicitor and given instructions that she had consented since that is pleaded in the Statement of Claim prepared. She stated that she simply could not recall signing any consent in respect of the post mortem for Angelica. When questioned further, and again I repeat, in a very sympathetic and careful way by Mr Fitzgerald, she finally stated: "I could have consented, to me I just can't remember".

I will deal in due course with the evidence which each of the plaintiffs gave in respect of what they understood was involved in a post mortem examination.

Evidence of the second named plaintiff:

Re: Baby Thomas:

I will not set out all he said because much of it repeats in a factual way what was said by the first named plaintiff. But when asked what happened when Angela was brought to Holles Street for the birth of Thomas, he stated that when Thomas was delivered they knew that he was premature, but they were both allowed to see him for a brief moment before he was taken upstairs to Unit 8. Having gone home he received a call later that evening from a nurse in Holles Street to return because there were difficulties with Thomas. When he arrived back at the hospital, the nurses explained that Thomas was not strong enough and that his lungs were not fully developed, and that he would in all probability not survive. After a few hours, the doctor informed them that Thomas's condition was deteriorating and that it would be best if the machine was switched off. Jason stated in evidence that he told the doctor that he could not agree to that, and that Angela would have to make that decision since it was she who had carried Thomas. It appears that the two of them had a discussion about it and the decision to turn off the machine was made. They were holding Thomas when he passed away. Other members of the families were also present.

He has given evidence also that after Thomas died, there were two doctors present and that there was a conversation about whether they would agree to having a post mortem examination carried out. He says that they were told that such an examination would be good for them since it could give them information about why Thomas had not developed properly. He thinks that conversation lasted "five or ten minutes", and that they were each very upset at the time. When he was cross-examined by Mr Fitzgerald he accepted that consent had been given by both of them to a post mortem examination being carried out on baby Thomas.

Baby Angelica:

He gave evidence that on this occasion when Angela went into premature labour with Angelica, he had gone to Holles Street Hospital with her, as did one of her sisters. He felt there was going to be difficulty because she was very early. He asked Angela's sister to go into the labour ward with her because he himself was not feeling too well. Her sister came back out to him in due course and told him that it would be a stillbirth. He says that he went outside to get some fresh air, and that her sister went back in to comfort Angela. By the time he returned inside the hospital, Angelica had been delivered, and after a short while was taken away. He stated that he had not had any discussion about a post mortem on this occasion. When he was cross-examined he accepted that he did not know whether or not a consent may have been given by Angela and her sister in his absence, but that he certainly had not given a consent.

The plaintiffs' understanding of a post mortem:

First named plaintiff:

In her direct evidence Angela stated that they were both just asked by the doctor whether a post mortem examination could be done in order to find out what had happened, and she could recall nothing further about the conversation. She thought that the conversation lasted a few minutes.

She was cross-examined carefully by Mr Fitzgerald about what her understanding of a post mortem was in 1996 after Thomas was born. She replied:

"To me I just understood that they were just going to check out Thomas, just going to check out how he died and different things like that. But I didn't think they took organs out. I thought they just looked into the body."

She agreed, when it was suggested to her, that its purpose would be to try and find out why Thomas had died, and also to help her with any future pregnancies or difficulties. She accepted also, when it was put to her, that part of what she understood would happen was that the doctor would have to open up Thomas in order to carry out the examination. She agreed also that she had not asked any detailed questions about what would be involved in the examination, but she added: "…because I thought they would explain every single detail to us. They wanted to do a post mortem on the child. They should have explained properly."

She agreed that since that time she has found out more about what a post mortem entails. Mr Fitzgerald suggested to her that if she knew back in 1996 what she now knew, those details if they had been spelt out to her when she was so upset after the death of Thomas would have made her even sadder and more upset, and would have been hard to cope with. She agreed. She also agreed that it was a good idea to try and find out, and that one would like to know, what caused her two babies to die, and also for any plans she might have for the future. But she stated again that she did not know at the time that parts of her baby would be removed or retained by the hospital.

The second named plaintiff:

Jason was asked by Mr Fitzgerald whether in 1996, when he gave a consent to a post mortem examination on Thomas, he understood what a post mortem was. Jason responded that he thought he did, but that he had been wrong, and that he still does not really know what a full autopsy involves. He was then asked what was his understanding of a post mortem at that time in 1996. Jason stated:

"………they told me that they would open up the chest and have a look in at Thomas's lungs to see how much they had developed. I thought they would have done blood samples, a couple of scans, something like that. I didn't think they were going to actually take parts of him out and leave them out. If I had of I would have never agreed to it being done."

He was asked whether his understanding included the possibility that something might be removed and put back, to which he replied: "I thought maybe something like that, yeah." He went on:

"I didn't think anything would be taken out and left out and giving us a shell of a body to bury. Because at the end of the day that's what they gave us, a shell. They had all his organs in the hospital………at that time I was burying my son, the whole lot of my son."

He later stated his view that the hospital had no right to keep the organs of his two children.

Mr Fitzgerald then asked him to agree that if the full details of what might be involved in a post mortem examination were told to him and Angela at the time, it would have been much worse and most upsetting for them at that moment, even if the idea of having such an examination done was a good one. Jason agreed, but at the same time stated:

"Well, if they told me what he was going to do and remove stuff, I wouldn't have let him do it."

But he agreed that neither he nor Angela had actually asked any detailed questions about what might be involved.

Hearing about the retention of organs:

Angela:

Angela stated that Jason had heard on the radio news that some babies' organs had been retained by hospitals, and there was a number to ring if anyone wanted to get any information about their own babies' organs. She said that Jason rang the hospital.

In due course they received a letter dated 25^th April 2000 from the Master of the National Maternity Hospital stating there were organs retained from their babies. There was regret expressed for any distress caused by the information, and an assurance given that until they notified the hospital as to their wishes in respect of the organs, they would be retained at the hospital. A form was enclosed which outlined a number of choices.

A further letter dated 25^th May 2000 was received informing Angela and Jason that an appointment had now been arranged for them to see a Dr Murphy, Consultant Paediatrician, on the 6^th June 2000.

She stated that they met with Dr Murphy, and that there was also a social worker present. She says that she and Jason just asked why the organs had been taken out, and she said that they could not explain this to them properly. It appears also from her evidence that Jason kept asking for an explanation about this and that eventually the doctor just walked out after the meeting had lasted ten or fifteen minutes. She said that they had been given no explanation which satisfied them, and that Jason was very annoyed at the meeting and that he just wanted answers.

When she was cross-examined she stated that at the end of the meeting she was not happy because no answers had been given to them. She said that the doctor could not answer the question as to why the organs had been removed. She was asked whether at that meeting she had been given any details of how a post mortem was carried out, but she said they were not. But she was pressed further on this question as to whether at that meeting they had been given some details about the post mortem which had been done. She replied that they had been told about the post mortem and why one was done, but when she was asked whether she had found it helpful to be given information and the report of the post mortem, she replied that they were not happy with it at all, and that they just left. It was later clarified by a question to her from me that in fact it was the doctor who left the room first, leaving them just with the social worker.

Jason:

He has stated that after they left the hospital after the birth of each child, he never had any communication from the hospital before hearing on the radio about the retention of organs of babies. When he heard about it first, he rang Angela and said to her that he was going to ring the help-line number which had been given out. He did that and was told that no information could be given out over the telephone but that they would get back to him. He then referred to the letters received from the hospital, and gave evidence about what happened at the meeting with Dr Murphy on the 6^th June 2000 to which I have already referred.

He said that he and Angela had first met the social worker in a room and had been given a cup of tea. They had a brief conversation before Dr Murphy had come in. Jason went on to describe how it was explained to them what organs were removed, and that he had asked the doctor why they would take the organs, and that the answer given was simply that this is what is done. Jason stated that he had gone on to express the view that the hospital should not do such a thing "behind parents' backs" and that if it was something that they did, they should have said it to the parents. He agrees that he got very agitated at the meeting and that he told the doctor that he was not happy about the situation, and that the doctor had got up and left the meeting. He said that they heard nothing further from the hospital after that meeting, but that the social worker had made arrangements a couple of days later for the return of the organs to them for burial.

Mr Fitzgerald cross-examined Jason about events following the radio programme he had heard. Jason stated that when he had heard the programme first he had not really thought that his own babies' organs would have been involved because he thought they would have been too small to have been of use to other children as a transplant. He agreed that at that time part of his concern was that his babies' organs might have been used as a transplant, but that in fact he had been wrong about that. He stated in that regard: "I was wrong. They just took the babies' parts for no reason at all and just kept them in the hospital." He agreed, however, that this was not correct, and that he was aware of the reason, namely to try and find out why a baby had died and to help mother with any future pregnancy. His complaint was that they should have carried out the examination and then replaced into the body what had been removed. He stated to Mr Fitzgerald that the information given to him by the hospital following the radio programme had upset him.

The alleged personal injuries:

Angela:

Angela stated in her evidence that after the stillbirth of Angelica she was very distressed and upset, but that she kept it all to herself. She described herself as being "very cranky".

She said that when she was on her own she thought about it all the time, or when she was going asleep. She described how she was at the present time as "still upset", and she went on to state that it torments her, makes her angry and she just does not understand why what was done was done. She stated that she would be angry "every few days" and that she is just never happy. She stated: "I just don't smile". She became quite upset at this point in her evidence. Following a break, she stated that it is always on her mind and that she has good days and bad days. Poignantly, she added: "I just think about my two children, just see them laying in their coffins. It hurts."

Angela was questioned also by Mr Fitzgerald about this part of her evidence. She agreed with him that what she was saying was that what had happened "upset" her. She added that she had been just getting over the deaths of her children when the news about the organ retention reached her, and then, as she stated, "you have to do it all over again". She was asked by Mr Fitzgerald whether it was just an opening up again of the sadness which she had felt at the time she had lost her two children. She replied: "It just brought everything back again. Having to go over it again, it just hurt. It really did hurt." She agreed however that it was the same kind of sadness and hurt which she had felt at the time she had lost her babies.

She was asked also whether she had felt the need to get some medical attention for how she was feeling, but she stated that she did not, and that she had just put up with it and carried on as best she could. She stated that it was her solicitor who had arranged for her to see a psychiatrist, Dr Helen Cummiskey. I will deal with the evidence of Dr Cummiskey in due course.

She agreed that waiting for this case to be heard was distressing for her and that she will be glad when it is all over.

Jason:

Jason stated that he found it all very painful when he heard about the retention of the organs. He stated:

"… It was very painful for me at the time when I was burying my first child, Thomas, and then when I come back a couple of years later they tell me that I didn't bury my son at all, that all his organs that were inside him were still in the hospital."

He was asked how he felt about the time they buried the organs a couple of days after the meeting on the 6^th June 2000. He stated that he still felt sad about it and that he would just like to put the whole thing behind him and forget it so that he and Angela and their other daughter, Nicole could just get on with their lives. He said that he had thought that they had buried their children after they had died but that he had had to bury them a second time, and now they were in court talking about it again. As to how it affected him he stated that he gets depressed about it and just blocks it all in and doesn't talk to people about it. He bottles it up most of the time to himself.

Mr Fitzgerald suggested to Jason that he had felt the need to go and see a psychiatrist about what had happened. To this suggestion, Jason replied: "I didn't feel I had to go. My solicitor wanted me to go to see a psychiatrist."

Medical Evidence:

Dr Duggan, General Practitioner:

Dr Duggan is a GP and has practised as such for thirty years. Angela has been a patient of his for many years. He described her as being an infrequent attender, and that he had probably seen her 20 or 30 times over the past ten years or so.

In relation to matters relevant to this case, Dr Duggan stated that he had seen her in August 2000 which was a couple of months after the meeting at Holles Street Hospital in June 2000 to which I have referred. She attended him on the 31^st August 2000 and was "extremely upset, depressed and tearful" over hearing about the organ retention, and he stated also that she "had great difficulty with coping with the whole idea of the situation of her baby's organs being retained in the hospital for several years and felt that she could not continue to work at the time, she had sleep disturbance and was extremely upset by it."

He stated also that she had not been to see him in the aftermath of the death of Thomas or the stillbirth of Angelica, except that on 31^st December 1998 she had seen him with a respiratory tract infection. It was only in August 2000 that she attended him in relation to coping difficulties. He described his opinion of her at that time in the following way:

"I knew her to be a girl that coped very well because she had had difficult circumstances with another child who has problems - coped very well. I felt that the less disturbance caused emotionally as possible and for me to start delving into her emotional problems too deeply at that stage might, while on theoretical grounds might have great long-term benefit, could also cause great upset. Our system may not be in a position to cope with it, so once she was able to cope reasonably well - I hoped that she would, and if not she could come back to me and then we could explore it in a deeper way."

When he was cross-examined by Mr Fitzgerald, Dr Duggan stated that he believed that Angela came to see him in August 200 because she was upset, and that he had no record of anything else. He felt also that she may have come to see him so that he might explain things to her, because she had found the meeting at Holles Street to be "rather unsatisfactory". He also stated that he interpreted her situation as being of a reactivation of the feelings she had had at the time of the deaths of her babies. He preferred not to put any label as such on what she was going through, since he was a General Practitioner and not a psychiatrist, but he went on to say that "if pushed" he would say that she was suffering from "a reactive depression to the situation about being advised about the organs again". But no treatment was offered or recommended, and nor was she to return to him for review.

Mr Fitzgerald referred Dr Duggan to a passage from the report of Dr Helen Cummiskey and to the fact that she did not appear to go as far as he was going by describing it as a recognised psychiatric illness. He responded that "she was the one that has the expert interpretation - we would use some terms more loosely, I think."

Dr Duggan had not had occasion to treat Jason at all. He was not a patient of his.

Dr Helen Cummiskey, Consultant Psychiatrist:

Re: Angela:

She confirmed that Angela had been referred to her by her solicitor. Dr Cummiskey outlined the history of the events leading to her consultation with Angela, and there is no need for me to detail all that again as there is nothing new in anything contained in that history. But Dr Cummiskey went on to deal with what she discovered at the consultation about Angela's understanding of what was involved in post mortem examinations. She stated that in Angela's mind a post mortem did not involve removal of anything. She also described how Angela expressed her feelings about what had occurred, and that Angela described feeling hurt and angry about the removal of organs and violation of her child, and that she had "become totally preoccupied with thoughts about her children in a manner which was not controllable. In other words she could not get it out of her head" and that it had become magnified in her head. She also stated that the burial of the organs appeared to have brought her some relief but she remained angry and hurt by what had happened. Angela had no history of any psychiatric illness and that there was no family history of such either. During her evidence, Dr Cummiskey referred to the fact that the arrival of the news that organs had been retained by the hospital had reactivated thoughts about the loss of her two children, and that it was upsetting. Dr Cummiskey also referred to the fact that at the time she saw Angela, she was also upset about the death of her father in 2003. She was very close to her father and Dr Cummiskey stated that Angela continues to think of her late father and that "the memory of him had become fused with the images of her childrens' coffins, they had become fused, the loss and grief became fused."

Dr Cummiskey went on:

"On mental status examination her mood was level at examination. Despite being upset there was no persistent depressed - depression of her mood. She did describe feeling cranky as a result of the upsetting thoughts and feelings. She also described feeling tired. She had some difficulty initiating and maintaining sleep since the death of her father and she was able to pinpoint that. The disturbance in her sleep was related at time of onset due to the death of her father. Her appetite was stable. There was no psychotic features. There was no disturbance of her perception or cognitive capacities."

Dr Cummiskey was asked to express her clinical opinion and she did so in the following way:

"My clinical opinion was that she was upset and traumatised by the knowledge of the retention of the organs of her deceased children. In other words she was -- when I say traumatised, I mean that when you hear something very upsetting, for example, those people my age would look upon the death of President Kennedy when you heard about that as being a flashbulb type of trauma. It was not a pleasant feeling, it was a shock, it was a trauma. That's called a flashbulb effect. That she had that on her - she had multiple episodes, she was having multi episodes of that type of reactivation of her feelings."

She added again that her grief following the deaths of her children had been reactivated by the knowledge gained about the retention of her childrens' organs, and that this grief had been compounded now by a sense of hurt and outrage, superimposed also with the grief also for her late father's more recent death.

Mr Fitzgerald in his cross-examination asked her to confirm that it was her opinion that Angela was "upset and traumatised and it was compounded by a sense of outrage and hurt." Dr Cummiskey stated that was correct, but that it was not simply the knowledge that organs had been taken which had caused these feelings, but the whole process including the retrieval of the organs and their burial.

Re Jason:

She gave evidence of what Jason had told her at the consultation. It is very much in line with his own evidence which I have already outlined. She went on to say that he told her that he had tried to put everything out of his mind but that he is constantly reminded of it through the media and contact with his solicitors.

Jason had told Dr Cummiskey, amongst other things, that he had become upset and depressed following the decision to turn off the life support machine at the hospital when Thomas was born in 1996. He had turned to substance abuse after 1996 but had given that up when Angela was pregnant with Nicole. He had also got into trouble with the Gardai in relation to driving whilst drunk. He has since moderated his drinking habits apparently. She said he had no history of psychiatric illness.

She described his mood at consultation as level with no evidence of anxiety, although he described himself as a bit tense at home on account of the living arrangements and that he liked to withdraw sometimes and go for a walk on his own or play some golf. He also described waking at night sometimes in a frightened state but could not recall specific nightmares or bad dreams.

In relation to organ retention, Jason stated to her that the subject upsets him, that

he thinks about it a lot, and that it makes him sad and angry. She describes him as being non-psychotic and not having any cognitive deficits. She was asked to express her opinion on Jason and she did so as follows:

"………He became depressed following the death of his first child and drank to excess for a time and also abused illicit drugs. He has spent time in prison approximately 2000 and 2002 for a traffic offence and for assault. I felt that the death of his son had led to a period of depression complicated by alcohol and drug abuse………The retention of the childrens' organs has resulted in feelings of anger and at times sadness and a sense of violation."

The defendant's application that the plaintiffs' action be dismissed:

As I have already stated, at the conclusion of the case for the plaintiffs as set forth above, Mr Fitzgerald moved an application that the case against his client be dismissed without the necessity for answer by way of defence, on the basis, first of all, that no case had been made out in negligence, breach of contract, breach of duty, misrepresentation or under any of the other heads of claim, and that even if he was wrong about that, it had not been established even on a prima facie basis that either of the plaintiffs had suffered any injury which was at law compensatable, not being a recognised psychiatric injury.

In the event of failing to succeed in his application, Mr Fitzgerald wished to reserve his entitlement to call evidence on behalf of the defendant.

Submissions:

Mr Fitzgerald accepts, as he must, that in approaching this application at this stage of the proceedings, the Court must consider the plaintiffs' case at its highest.

With regard to the allegation of negligence, Mr Fitzgerald submits that this action in effect is a medical negligence action against a hospital, and that as such the principles of Dunne v. National Maternity Hospital [1989] IR. 91 must apply, and therefore since the plaintiffs have adduced no expert evidence of any kind as to what constitutes recognised practice with regard to the provision of information as to what is involved in a post mortem examination at the time of obtaining the consent of the plaintiffs, and in particular regarding the fact that organs might be retained, inter alia, for further examination, they have not, even taking their case at its highest, established any basis for a finding of negligence, and that the action in negligence must therefore fail. He submits that without any such expert evidence, this Court cannot find that there has been any breach of a duty of care, even assuming that there was such a duty in the present case in relation to the manner in which the consents to post mortem examination were obtained. In this regard, Mr Fitzgerald has referred again to the Statement of Claim wherein, inter alia, it is pleaded that:

"the plaintiffs and each of them gave their consent to the servants or agents of the said hospital to carry out forthwith a post-mortem examination on their said son or other special medical examination by way of analysis, tests or otherwise, of particular parts or contents of the body of their son".

Particulars of the negligence alleged were provided by the plaintiffs in their Replies to Particulars in the following way:

"The defendant hospital failed to explain to the plaintiffs that substantial amounts of tissue, including entire organs, would be removed from the bodies of their infants at the post-mortem examination, and

They failed to return the said tissue and organs and any or all of same to the bodies of the infants at the end of the post-mortem examinations and/or before or during the preparation of the bodies of the infants for burial;

They failed to inform the plaintiffs that the said substantial amounts of tissue and/or organs would be retained indefinitely by the hospital;

They failed to give any reason for such indefinite retention of tissue and organs;

They failed to inform the plaintiffs of the retention of the tissue and organs as aforesaid until asked;

They removed and retained the said tissues and organs without the consent to same;

They failed to appreciate that the plaintiffs, in burying the bodies of their infants would think and did think and were entitled to think that they were burying the entire bodies of the infants in such a final and irrevocable way as would allow them to grieve normally;

They failed to comprehend the hurt and distress, which would be caused and was caused to the plaintiffs on their being informed of the retention of the substantial amounts of tissue and organ and by the burial of same."

A similar pleading is made in respect of the post-mortem following the stillbirth of the plaintiffs' daughter, Angelica. It is submitted by Mr Fitzgerald that the onus is on the plaintiffs to satisfy the Court, at this stage only to a prima facie level, that there was a duty on the hospital to avoid doing these things alleged to constitute negligence, and that there has been no evidence adduced from which the Court could conclude that there was.

In relation to the point made by the defendant that there is no expert evidence on which this Court can find that there was a particular duty of care and a breach of that duty, Mr Revington, in his response, submitted that, even if this case was to be classified as one involving medical negligence, and he did not concede that it was to be so narrowly considered, this Court could be in a position to conclude without any expert evidence that the manner in which the consent to post-mortem examination was obtained (i.e. without the giving of comprehensive detail as to what was involved regarding possible organ retention) was so inherently defective as to constitute negligence. He submitted in effect that the Court did not require any medical expert evidence in order to reach such a conclusion.

Mr Fitzgerald referred to a judgment of O'Donovan J. in Devlin v. The National Maternity Hospital, High Court unreported, 1^st July 2004, where the learned judge had to consider a similar application for non- suit made at the conclusion of the plaintiffs' case.

In that case, however, unlike the present case, the plaintiffs' case, taken at its highest, indicated that the plaintiffs had given no consent to any post-mortem examination being undertaken. He therefore decided that he could not dismiss the plaintiff's claim at that point of their case, on the basis that there was no breach of a duty of care made out taking the plaintiffs' case at its highest, and he also considered that in the absence of any consent, that it was foreseeable that injury could be suffered by the plaintiffs. However, the case was dismissed on the basis that the plaintiffs' case, at its highest even, had failed to establish by evidence in respect of the husband that he had suffered an injury, even though he had been distressed. In respect of the wife, O'Donovan J. was satisfied from the evidence that she had suffered "post traumatic stress which is the equivalent of nervous shock". The learned judge went on to consider whether in that case the wife had succeeded in satisfying the various requirements laid down by Hamilton CJ in Kelly v. Hennessy [1996] ILRM 321 if there was to be recovery of damages for nervous shock – principles approved of by the Supreme Court in Fletcher v. Commissioners of Public Works [2003] 1 465. He found that while four of the five conditions were satisfied, she had failed to satisfy the fourth condition, namely "that the nervous shock sustained was by reason of actual or apprehended physical injury to the plaintiff or a person other than the plaintiff". In my view the same must be so also on the facts of the present case.

But Mr Fitzgerald refers to the Devlin case, also for the purpose of drawing attention to the fact that in that case there was evidence adduced by the plaintiffs from medical experts as to what the practice was in the 1980s as to the obtaining of consent to post-mortem examinations, and he refers again to the fact that there is no such expert evidence in the present case.

Mr Revington, on behalf of the plaintiffs has laid considerable emphasis in this case on the submission that even though the plaintiffs have pleaded that they consented to the post-mortem examinations being carried out, nevertheless that consent cannot be a valid consent if the person consenting is not appraised or does not know exactly what they are consenting to, namely that the organs or tissue might be retained and not returned to the parents with the body for burial after the examination has taken place. In the circumstances he says that accordingly there is no real or actual consent in this case.

With regard to the claim based on misrepresentation, Mr Fitzgerald submits that since there has been no evidence adduced as any express terms set forth at the time consent was sought and given, it must be presumed that any terms referred to in the pleading are terms which must be implied. Indeed, the replies to particulars confirm that they are implied terms. Mr Fitzgerald submits that there has been no evidence from anybody as to what terms are to be properly implied in the relationship between the plaintiffs and the hospital, and that this failure undermines completely the plaintiffs' case on misrepresentation. Mr Fitzgerald has submitted that these terms are not such as to be implied by law, and therefore some evidence is required before the Court can find that they were implied terms. On the other hand, Mr Revington has submitted that the court has all the evidence it needs to deal with the question as to whether the terms pleaded to be implied terms are such.

The following are the terms described in the Statement of Claim as being express or implied in connection with the consent given in relation to the post-mortem on Thomas. The same are pleaded in relation to the post-mortem examination of Angelica:

"6 (a) that the said examination would be carried out in accordance with strict medical practice and guidelines;

(b) that only so much of the tissue or organs of their son as were necessary to establish the cause of his death and/or would help the first named plaintiff with future pregnancies would be examined or interfered with;

(c) that once the examination had taken place that so much of the organs or tissues as had been removed for the purpose of the examination would be immediately disposed of in a dignified and clean manner or returned forthwith to the plaintiffs a parents and next of kin or either of them for immediate burial."

These are the implied representations which the plaintiffs say they relied upon when they gave their consent. But there is nothing from which this Court can conclude that it is reasonable to imply these representations at all.

Mr Fitzgerald has also submitted that as the law relating to negligent misrepresentation has evolved, it seems to be confined to cases in which it is shown that some economic loss has resulted, and he has referred to the judgment in Hedley Byrne & Co Ltd v. Heller & Partners Ltd [1964] AC 465, and to the learned and established textbook by McMahon and Binchy on the Law of Torts, Chapter 10 thereof. He has pointed out that in the present case, the damages claimed are confined to alleged personal injuries, and not to economic loss.

With regard to breach of contract, Mr Fitzgerald submits that on the evidence adduced by the plaintiffs there has been nothing in the nature of any breach of contract established in relation to the post-mortem examinations. Mr Fitzgerald did accept that at the time Angela was admitted to the hospital on each occasion there would have been a contractual relationship between her and the hospital, but certainly not as regards Jason. He further submits in relation to any contract with Angela, that it would have related to her care and maintenance at the hospital, and the care also of the babies born, but would not extend to matters pertinent to any post-mortem examination.

I do not propose to set out any detail the brief submissions made by Mr Fitzgerald in relation to the plaintiffs' claims relating to Bailment, Conversion, Detinue and Trespass. In effect, Mr Revington rightly conceded that the plaintiffs' claims did not come under these headings, and he certainly has not relied upon them to any relevant extent.

Fitzgerald submitted that following the evidence given by and on behalf of the plaintiffs, there were nineteen facts which he felt were the established relevant facts in the case, and he listed them as follows:

1. In 1996 - baby Thomas died after 14 hours of life.

2. Plaintiffs both consented to a post mortem

3. No discussions took place as to details of what a post mortem entailed.

4. Both plaintiffs knew that baby Thomas's body would be opened

5. Baby Thomas was buried

1. At the post-mortem organs were removed, some restored and some retained by the hospital

7. 1998 - baby Angelica was stillborn

8. It is pleaded that consent to post-mortem was given by both plaintiffs, although the evidence has been that Angela does not remember and Jason said he did not consent - Dr Cummiskey was also told that they had consented to post-mortem

9. No discussion about details of the post-mortem to be performed on Angelica

10. Plaintiffs knew that Angelica's body would be opened for the post-mortem.

11. Angelica was buried

12. At post-mortem organs were removed, some were restored and some retained by the hospital

13. Plaintiffs did not know that organs or tissue had been retained. Mr Fitzgerald agreed with me when I suggested that this fact should be reframed to read "the plaintiffs did not know that organs or tissue either would be or had been retained.

14. In 200 the plaintiffs were informed of the true position

15. The hospital offered to return the organs and they were returned and buried, and some tissue in slides was retained.

16. The plaintiffs have suffered no recognisable psychiatric illness

17. The meeting on the 6^th June 2000 was unsatisfactory from the plaintiffs' viewpoint

18. There has been no demand and refusal of the organs and tissues to the plaintiffs

19. Angela would have found it hard to cope with more details of what a post-mortem entailed on the days when she gave consent.

Mr Fitzgerald then outlined what evidence, in his submission, had not been given, and which was necessary for the plaintiffs to give if they are to succeed:

1. No evidence of any recognised psychiatric illness;

2. No evidence from any expert, except on the question of damages;

3. No evidence of any financial loss - a relevant factor in relation to some of the torts alleged;

4. No evidence on the question of foreseeability of the plaintiffs suffering an illness when they discovered the organs had been retained;

5. No evidence of any implied term in relation to the consents given.

Submissions in relation to the alleged personal injuries:

I have already set out the plaintiffs' evidence and the evidence of Dr Duggan, who is Angela's General Practitioner, and also of Dr Helen Cummiskey, Consultant Psychiatrist, to whom both plaintiffs were referred by their solicitor for this case.

Mr Fitzgerald submits that there is no evidence that the plaintiffs or either of them suffered anything in the nature of a recognised psychiatric illness. He accepts of course, and was at pains to so point out, that each of the plaintiffs gave evidence of having been upset by the discovery that organs and tissue belonging to their deceased children had been retained by the hospital after the post-mortem examinations had been completed, but that as such, it was not something which was capable of sounding in damages against the defendant.

Mr Fitzgerald suggests that the evidence of Dr Cummiskey amounts to saying that Angela suffered upset, outrage and anger and was traumatised. If this upset was anything, he submits, it was in the nature of nervous shock, and while not conceding that this was so, Mr Fitzgerald submitted that in any event it did not come within the conditions necessary for the recovery of damages as stated in Kelly v. Hennessy [1995] 3 IR 253. As a fallback position, Mr Fitzgerald has submitted that even if he is incorrect in stating that there is no compensatable injury suffered by the plaintiffs, then any such injury which they may be found to have suffered is so remote as to be unforeseeable, and that therefore one of the grounds for awarding damages for negligence is absent - namely foreseeability of injury, and also that there has been no expert evidence regarding this question of foreseeability of damage.

In the case of Jason, Dr Cummiskey gave it as her opinion that the discovery about organ retention had caused him "anger and at times sadness and a sense of violation."

Mr Fitzgerald has pointed to the fact that distress is not something which is capable of compensation beyond the confines of mental distress in the context of a fatal accident under the Civil Liability Act, 1961.

He has also referred to the fact that neither plaintiff underwent or was prescribed any treatment for any illness they alleged. In fact apart from Angela going to her GP, both plaintiffs consulted Dr Cummiskey on the advice of their solicitor for this case.

When Mr Revington dealt in his submissions with the vital question of whether what the plaintiffs or either of them suffered amounted to a recognised psychiatric injury, he accepted that Dr Cummiskey had not gone as far as stating that either had suffered a recognised illness or disorder. But he sought to draw some assistance from the fact that in various reported cases a number of different words appear to be used interchangeably, such as "recognised illness", "recognisable illness", illness "attributable" or "attributed" to shock and so on. He felt that even if the plaintiffs' illness came towards the bottom of the scale, it nevertheless was of such a character to be capable of compensation, even if no medical label as such could be attached to it. He referred to the fact that a symptom of post traumatic stress disorder is an inability to sleep properly at night, and that in the present case, Angela had suffered from that problem. The same in his view could be said regarding the flashbacks to which she referred in evidence. He also referred to the fact that Dr Cummiskey had specifically used the word "trauma" in relation to what Angela suffered. It will be recalled that in her report, Dr Cummiskey has stated that Angela was "upset and traumatised" by the discovery that organs had been retained.

First of all I am satisfied that the very understandable upset and anger experienced by Jason on hearing that organs and tissue belonging to his children had been retained without his knowledge never caused him to suffer any recognised psychiatric illness. His evidence has been very honestly and candidly given. He neither felt the need to seek medical advice or treatment, and nor has he been offered or received any such treatment. I can well understand that the degree and extent of his anger and distress, and it was evident even to this day from the manner, albeit dignified and restrained, in which he expressed himself in the witness box. It is completely understandable. That said, however, it is necessary in order to recover compensation, that what was experienced in this regard by Jason be within the categories of illness recognised by law as attracting damages. Dr Cummiskey, as I have stated, has said in her report that Jason became depressed following the death of Thomas, but that cannot be linked to the discovery of the fact that some organs and tissue were retained by the hospital. Her findings in relation to what he suffered in relation to the latter is confined to "feelings of anger and at times sadness and a sense of violation". These are not matters which can sound in damages. In so far as Mr Revington sought to draw support from my judgment in Philp v. Ryan, unreported, High Court, 1^st July 2004, I would not be prepared to consider that decision as extending to the present case, and in any event it is noticeable that in the judgment of Fennelly J. in the Supreme Court the basis of the award of damages was adjusted somewhat, and I cannot feel that this case would come within its ambit.

As far as Angela is concerned, she undoubtedly suffered great upset at hearing of the retention of organs and Dr Cummiskey acknowledges that. I have set out her findings in relation to Angela. But while Dr Cummiskey describes in some detail the way in which the discovery upset Angela and made her angry, and uses the word "traumatised" in relation thereto, she never at any stage uses the term "post traumatic stress syndrome". She even went as far in her evidence, which I have set out, as explaining exactly what she meant by the word "traumatised". It will be recalled that she stated as follows in that regard:

" when I say traumatised, I mean that when you hear something very upsetting, for example, those people my age would look upon the death of President Kennedy when you heard about that as being a flashbulb type of trauma. It was not a pleasant feeling, it was a shock, it was a trauma. That's called a flashbulb effect."

This seems removed from what one normally understands by post traumatic stress syndrome/nervous shock. I cannot help feeling that if she had considered that the case fell into that category she would have said so, either in her evidence or in her report. Neither was she asked nor was it even put to her that it fell into that category. The difficulty experienced in Angela's sleep pattern has been associated by Dr Cummiskey with the death of Angela's father, rather than the organ retention discovery. Dr Cummiskey has described this discovery as having reactivated her grief at the loss of her children, "compounded by a sense of outrage and hurt".

While Angela appears to have attended her G.P. in August 2000 there is nothing in Dr Duggan's evidence to suggest any recognised psychiatric illness, except his reference to a reactive depression- a term which he accepted might be a rather loos use of words, and he agreed that he would defer to Dr Cummiskey's expert opinion in such matters.

Dr Cummiskey has stopped short of describing any recognised psychiatric illness in Angela. In fact she states that she is functioning well, and that there are no psychotic features, and no disturbance of her perception or cognitive capacities. She has also stated in her report that Angela's mood was level at examination, and that she had no history of depression.

For the reasons which I hope are clearly set out in this judgment, the Court unable to discover from any evidence any recognised psychiatric illness having been suffered by Angela, even though her anger and upset and grief is still palpable, and I fully understand that.. But the Court is not able to award any damages to either plaintiff for these matters. I would perhaps also say that having observed both Angela and Jason in the witness box when they gave their evidence, I feel that from their point of view this case has not in fact been about the recovery of damages. I have little doubt that no award of damages would be even half as useful in easing their feelings of anger and distress as a forthright and sincere and appropriately tendered apology for the anger, hurt and distress caused, however unintentionally at the time, by the retention of their babies' organs, and perhaps an acknowledgement to the plaintiffs that the failure to explain that organs and tissue might be retained was not these days an acceptable way of dealing with such a situation. But the problem is that our legal system is not conducive to such steps being taken by defendants exposed to a claim for damages once fault might be seen to be acknowledged by such an apology, and are inhibited from taking a step which perhaps in other circumstances they would wish to take in order to assist those who have suffered distress and hurt. Perhaps the meeting of the 6^th June 2000 in this case was an effort being made in this respect, but if the plaintiffs' evidence is true, and I am conscious of the fact that the defendants have not been called upon to give their evidence at this point in the proceedings, it singularly failed for whatever reason to achieve its worthy objective. That is a pity.

For this reason alone, the application made by Mr Fitzgerald must be acceded to, and the Court must dismiss the claims brought by the plaintiffs against the defendant.

In relation to the other question as to whether, regardless of the nature of any injury claimed to have been suffered, these plaintiffs have established any legal basis for succeeding against the defendant, I am of the view that in this particular case, the necessary evidence has not been adduced in order to establish negligence. For negligence to be found, there must first of all be a duty of care owing to the plaintiffs by the defendant. Thereafter the plaintiffs must establish a breach of that duty. Questions of proximity and foreseeability also arise, as do the other conditions stated by Keane CJ. in Glencar Exploration Plc. v. Mayo County Council [2002] 1 ILRM 481.

There must be some evidence given in order to reach these conclusions, and in a case such as this, such evidence would need to be given by experts. None has been adduced. In the absence of such evidence, this Court would have had no basis for making a finding of negligence against the hospital or its staff.

Similar considerations arise in relation to the claim of misrepresentation. The Court has no evidence on which to reach any conclusion on misrepresentation, and also in relation to breach of contract. Those claims hinge on the alleged implied terms surrounding the obtaining of the plaintiffs' consents to post-mortem examination, and again, expert evidence would be needed to establish necessary matters. The remaining claims are not being pursued by the plaintiffs and there is no need to address them in this judgment.

I have taken the view that given the nature of the basis on which I have dismissed these claims, I ought not to set out any consideration of the cases to which the Court has been referred, and in particular the case of AB v. Leeds Teaching Hospital NHS Trust [2004] EWHC 644 (QB) – a judgment dealing with four separate claims by four different plaintiffs arising out of the organ retention controversy. It is an important case for any Court dealing with a claim such as the present plaintiffs' claims, to consider. A striking feature of those cases in AB is that there was expert evidence adduced of the kind which I have found to be lacking in the present case. However, any detailed consideration of that case should, I feel, await another occasion when perhaps a case will come before the Court with the necessary evidence called, including evidence of compensatable injury, so that the issues are properly brought into play, and the Court is required to make a decision, in the light of evidence adduced, on the manner in which consent was obtained, and the adequacy information given prior to consent being given.

I commenced this judgment by recognising as fully as I can the immense distress which the plaintiffs have endured following the news of organ retention. In those circumstances, the Court has looked most anxiously at the application made by the defendant to dismiss these claims, lest by any chance such an order might be made too easily in a case such as this, especially when such cases have not come before the Court, other than perhaps on one occasion to which the Court has been referred (the Devlin case), a case which was dismissed.

I am satisfied, however, that these claims must be dismissed at this stage of the hearing for the reasons which I have set forth as fully as I can. I therefore order accordingly.

Approved: Peart J.