The High Court will rule tomorrow on an application by the National Maternity Hospital (NMH) to dismiss an action brought against it by a couple over the retention by the hospital in 1988 of the organs of their stillborn daughter after a post-mortem was allegedly carried out on the child without their consent.
Today, Mr Charles Meenan SC, for the NMH, Holles Street, Dublin, said the evidence called on behalf of Mr Terence and Mrs Bridget Devlin had not established any case against the hospital and he wanted a direction to that effect.
Opposing the application, Mr Padraig McCartan SC, for the Devlins, said the evidence established that a post-mortem was carried out without the Devlin's consent.
It followed that organs should not have been removed from their stillborn daughter Laura.
Mr Justice O'Donovan said he wanted time to consider the issues raised and would rule on the application today.
If the judge refuses the application, the case will proceed with evidence called on behalf of the hospital.
In their proceedings, the Devlins', of Ballyogan Crescent, Carrickmines, Dublin, whose daughter was stillborn at the NMH on May 30th, 1988, claim the child's organs were removed after a post mortem which they claim occurred without their consent.
The hospital argues there were no post-mortem consent forms in 1988 and pleads that Mrs Devlin did consent to the postmortem.
Today, Mr Meenan contended the Devlins' claim had to fail on three grounds — that it was brought outside the time permitted in the Statute of Limitations, that no loss or damage had been identified and that no loss was recoverable.
In relation to Mr Devlin's claim, Mr Meenan argued that Mr Devlin had not identified any injury caused to him personally.
On Mrs Devlin's claim, Mr Meenan said she was aware in 1988 that a post-mortem had been carried out and presumably was aware this was done against her express wishes. She had consulted a solicitor in relation to other litigation but did not pursue the matter of the alleged lack of consent to the post-mortem.
In those circumstances, her claim regarding lack of consent for the post-mortem and any distress resulting from that had to be statute barred. An expert retained by the Devlins had told the court he was aware in 1991, from looking at the post-mortem report, that organs had been retained.
Mrs Devlin must have had knowledge of that too when she obtained the expert's report in 1991.
If the court found the post-mortem was done without consent, it could not award compensation because the claim was statute barred, he argued. If the court found the claim was not statute barred, the court should not award damages because the Devlins had not identified any loss.
The information which was available to Mrs Devlin in 1991 regarding retention of organs was not information establishing negligence, Mr Meenan also argued. The general and approved practice then was that, even if consent was obtained for a post-mortem on a stillborn child, parents were not told about retention of organs.
Mrs Devlin was claiming that the first time she learned of the retention of organs was in a letter from the NMH in March 2000.
The hospital had no duty to tell her about the retention of organs and any nervous shock resulting did not arise from any breach of duty by the hospital.
Opposing the application, Mr McCartan said this was a personal injuries action arising from the actions of the NMH in doing a post-mortem without consent and retaining the child's organs.
There was a duty of care on Mrs Devlin's obstetrician to her and to her child.
When that child died, the duty of her was solely to the mother and she should have been given the facts about an autopsy.