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Compensation for Organ Retention Without Consent

Our clients' baby was born in April 1998 at 34 weeks by caesarean section. At birth, it was noted that he had a number of congenital malformations including vertebral anomalies, congenital heart defect and cleft palate among others. During his short life, he suffered a number of problems and eventually passed away on 22 May 1998. A post-mortem was carried out at Birmingham Women’s Hospital on the 29th May 1998 to establish his cause of death.

The parents consented to a post-mortem to find out the cause of death but they were not informed that any organs would be removed and not replaced with the body nor was the post-mortem procedure fully explained to them.

At the funeral, our clients wished to see their baby but were told by the funeral director that it would be better to remember him how he was before he had died.

Following media publicity surrounding other incidences of organ retention, our clients made an enquiry to the Hospital in February 2001 and asked for confirmation of what occurred at the post-mortem. They received an initial response in June 2001 confirming that, in fact, organs had been retained. A detailed response followed in August 2001 which explained that the baby’s liver, kidneys, heart, thyroid, lungs, adrenals, pancreas, spleen, bladder, testes, intestine, spinal cord, rib, muscle, brain had all been removed during the post-mortem.

The Hospital stated that the pathologist who carried out the post-mortem was no longer working at the hospital and they assumed that the majority of the baby’s organs would not have been returned to his body before the funeral. Although the Hospital were not able to ascertain precise details of what became of the retained organs they said it was likely that they would have been incinerated at a later time.

In a later letter, the hospital confirmed that no specific consent was obtained in relation to retention of organs. It was explained that this was common practice at that time for all post-mortems undertaken due to the sensitivity of this period shortly following a death for any family. However, this practice has now changed and a full discussion of the details of a post-mortem examination takes place.

Following knowledge of the organ retention, the mother suffered emotional problems. She suffered numerous panic attacks whenever she thought about the list of organs that were taken from her baby. The knowledge of the retention of the baby’s organs put a strain on the relationship between the mother and father and also affected the baby’s twin sister, who survived.

The parents approached us to obtain advice about a potential claim against the relevant Health Authority. They joined the National Organ Group Litigation in July 2003.

Following a Judgement, the NHSLA settled the claim brought by our clients upon payment of costs and compensation in May 2005.

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