Couple claim they suffered profound trauma when told stillborn baby’s brain had been retained

Couple suing for nervous shock after death of son at Cork University Maternity Hospital in 2018 say no consent given to retain child’s organ

In updated legal papers presented last week, the couple claims there was a failure to obtain their consent to retain their son’s brain. Photograph: Daragh MacSweeney/Provision

A couple‘s High Court action alleges they suffered profound trauma when told three months after they buried their stillborn baby that his brain had been retained.

In their case against the Health Service Executive (HSE), they allege the mother was so overwhelmed by the phone call in 2018 that she vomited.

The couple are suing for alleged nervous shock and say they suffered profound trauma over and above what they already experienced when their son died at Cork University Maternity Hospital (CUMH).

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.

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They claim there was a failure to identify a major foetal abnormality. All of the claims are denied.

In updated legal papers presented last week, the couple claims there was a failure to obtain their consent to retain their son’s brain and a failure to ensure there was proper communication of information regarding the postmortem examination and organ retention policy.

They allege there was a failure to explain the need for retention of organs in advance with the parents and a failure to inform them their baby’s brain had been retained and had not been released back to them for burial with his body following a postmortem.

Their senior counsel, John O’Mahony, with Doireann O’Mahony BL, said the call stating their baby’s brain was kept came “out of the blue”.

He was resisting the HSE’s bid for an adjournment of the couple’s action, which was scheduled to begin on Wednesday.

Mr O’Mahony said it was “ungracious, cruel and unmeritorious” of the HSE to seek to adjourn the case.

The HSE’s senior counsel, Luán Ó Braonáin, submitted that the new allegations concerning the brain retention fundamentally change the case and the HSE needs time to look into the matter.

Counsel said that if the couple are successful on the retention issue it would have implications and make new law as the Supreme Court last ruled in 2007 on 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, Ms O’Mahony, for the couple, 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. To be just to the parties the case stood adjourned.