'Badly hurt parents' sue HSE over retention of son's brain following stillbirth at Cork hospital
The couple are already suing over care received at Cork University Maternity Hospital claiming a congenital abnormality should have been identified in the antenatal period and they should have been counselled and prepared for what was to come.
A couple who claims they suffered profound trauma when they were told three months after their baby’s stillbirth at Cork University Maternity Hospital, a post-mortem examination and burial that the baby’s brain had been retained have launched a High Court action.
They claim against the HSE that three months after burying their baby son in 2018 they got a phone call telling them the baby’s brain was ready to be released.
The baby’s mother, according to legal papers, had the absolutely horrific experience of hearing her son’s brain had been retained and it is claimed she was so overwhelmed by the call, she vomited.
The couple who are suing the HSE for nervous shock, it is maintained, were allegedly caused to suffer additional profound trauma over and above that already experienced by them at the time of their son’s death.
They are already suing over care received at CUMH claiming a congenital abnormality should have been identified in the antenatal period and they should have been counselled and prepared for what was to come.
They claim there was an alleged failure to identify a major foetal abnormality. All of the claims are denied.
In updated particulars presented last week, the couple also claim there was an alleged failure to obtain their consent to retaining their son’s brain and an alleged failure to ensure there was proper communication of information to them regarding the post-mortem examination and organ retention policy.
In their action, it is also maintained there was an alleged failure to explain the need for retention of organs in advance with the parents and an alleged failure to inform them the baby’s brain had been retained and had not been released back to them for burial with his body.
They also contend there was an alleged failure to hold a full and frank discussion with them about seeking consent to retain their son’s brain. Their counsel, Dr John O’Mahony SC with Doireann O’Mahony BL, said the call came “out of the blue” that their baby’s brain was retained.
Counsel was resisting an attempt by the HSE to have the couple’s action, specially fixed to begin before the High Court on Wednesday, adjourned.
Dr O’Mahony told the court these were “badly hurt parents” and they had “suffered appallingly” and he said it was “ungracious, cruel and unmeritorious“ of the HSE who he said has a “bottomless pit of resources” to seek to adjourn the case.
HSE counsel, Luán ó Braonáin SC, submitted the new allegations in the case regarding the brain retention fundamentally changes the case and the HSE needed time to look into the matter.
Counsel said if the couple were successful on the retention issue it would have implications and make new law as the Supreme Court had last ruled in 2007 in relation to organ retention. On that occasion the Supreme Court held a Dublin couple was not entitled to damages from a hospital for nervous shock over the retention in 1988 of some of the organs of their stillborn daughter.
In her submission to the High Court on Tuesday, Doireann O’Mahony Bl for the couple said they “have been through hell and back” and it was coming up to the sixth anniversary of their son’s stillbirth and death.
She said it was their case that there was nothing new being pleaded in the case and their side did not consider the brain retention claims were an additional part of the claim.
Ms Justice Leonie Reynolds said the HSE was entitled to know the case that was against them and unfortunately the retention claims were only disclosed last week. In the circumstances, and to be just to the parties, the case stood adjourned.
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