A B and Others v Leeds Teaching Hospital NHS Trust and another
| Jurisdiction | England & Wales |
| Judge | The Hon Mr Justice Gage,Mr Justice Gage |
| Judgment Date | 26 March 2004 |
| Neutral Citation | [2004] EWHC 644 (QB) |
| Docket Number | Case No: HQ 0101462 |
| Court | Queen's Bench Division |
| Date | 26 March 2004 |
[2004] EWHC 644 (QB)
The Honourable Mr Justice Gage
Case No: HQ 0101462
IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
Mr Richard Lissack QC and Mr Peter Skelton (instructed by Clarke Willmott) for the Claimant
Miss Sally Smith QC, Mr David Hart QC and Mr Owain Thomas (instructed by Hempsons) for the Defendants
Hearing dates : 26 January to 17 February 2004
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
Mr Justice Gage:
Introduction
In September 1999, when giving evidence to the Inquiry into the management of the care of children receiving complex heart surgery at Bristol Royal Infirmary, Professor Robert Anderson, a distinguished professor of paediatric cardiac morphology, disclosed that for a long period of time tissue had been taken at or after post-mortems on children without being disclosed to the parents. The tissue had been removed and retained by pathologists at various named hospitals around the country. As a result a census was conducted during the year 2000 of organs and tissues retained by pathology services. The Bristol inquiry was asked to produce an interim report dealing with this issue. There followed two further inquiries one of which was an inquiry into the practice of removal and retention of children's organs at the Royal Liverpool Children's Hospital in Liverpool. These inquiries and the public outcry following the disclosure by Professor Anderson are the genesis of the litigation which has led to the trial by me of three lead actions in group litigation entitled the Nationwide Organ Group Litigation (NOGL).
The NOGL was the second of two group litigation orders made in respect of claims and potential claims by parents in respect of the removal and retention of deceased children's organs. The first order was made in respect of claims arising out of organs removed and retained at the Royal Liverpool Children's Hospital at Alder Hey (RLCL). The group order for that group was made on 18 December 2000. The NOGL order was made on 16 May 2001 in respect of organ retentions at other hospitals.
In January 2003, following mediation, the RLCL was compromised and on 31 January 2003 I made a final order in that litigation. On the same date I gave directions for the hearing of lead actions in the NOGL. These and subsequent orders have culminated in the trial of these three lead claims. In addition to the three lead claims the parties have agreed that I should decide four preliminary issues based on an agreed factual matrix and two agreed assumptions. In this way it is hoped that the resolution of the three lead claims and the preliminary issues will dispose of the vast majority of the 2140 claims on the register in the NOGL.
Background
The three lead claims all concern organs removed from children at post-mortems and retained in the hospitals where the post-mortems were carried out until such time as the organs were disposed of. In each case the claimants or claimant are the parents of the deceased children. It is alleged in each case that the organs were removed, retained and subsequently disposed of without the knowledge and consent of the claimants. The claimants claim damages for nervous shock, or psychiatric injury as it is more commonly known, caused by these events.
Karen and David Harris
The first claimants are Mr and Mrs Harris. Karen Harris was born on 16 August 1969. Her husband, David Harris, is a little older than her. He had been married before and had two sons by his first wife. One of the sons has Downs Syndrome. In 1995 Mrs Harris became pregnant with Rosina. She said in evidence that she had always wanted a large family. Ten weeks into her pregnancy she was diagnosed as diabetic. At 20 weeks she and her husband learnt that their baby was likely to suffer from a rare condition known as arthrogryposis. They were strongly advised to terminate the pregnancy. They rejected that advice and at 28 weeks on 6 October 1995 Mrs Harris was admitted to the West Dorset General Hospital (the first defendant in this action) as an emergency and underwent a caesarean delivery of her baby daughter, Rosina. The baby weighed 686 grammes and was born with severe multiple abnormalities. Rosina lived until 9 October 1995 when she died. A post-mortem was conducted on Rosina during which her brain, heart, lungs and spinal cord were removed. These organs were retained in the Southampton University Hospital (the second defendant in this action) where the post-mortem had been carried out. On 16 October Rosina was cremated without these organs being returned to her body. By a letter dated 31 May 2001 from the Southampton University Hospital Mr and Mrs Harris learnt for the first time that Rosina's organs had been removed at the time of the post-mortem and retained in the hospital. Subsequently they were told that the organs had been disposed of. Mr and Mrs Harris complain that not only did they not consent to those organs being removed and retained but when asked if a post-mortem could be carried out they gave specific instructions that all organs removed must be returned so that Rosina could be buried or cremated whole.
Susan Carpenter
Susan Carpenter was born on 8 August 1959. In 1980 she married Alan Carpenter. They now have three children. On 12 September 1985 Susan Carpenter gave birth to a boy, Daniel Gordon Carpenter. He was her first child. Her pregnancy was normal and Daniel was for just over a year a perfectly normal healthy child. At Christmas 1986 he started to cry a lot. Throughout January 1987 his health deteriorated and at the beginning of February he was diagnosed as having a brain tumour. On 3 February 1987 at Southampton University Hospital an operation was carried out on Daniel to remove the tumour which was found to be round the brain stem. Following the operation Daniel's health improved over the next few days but suddenly deteriorated and on 8 February 1987 he died.
Mrs Carpenter was fulsome in her praise for the doctors and staff who treated Daniel at Southampton University Hospital (the defendant in this action). She was quite satisfied that everything possible had been done for him and that she knew the cause of his death. However it was explained to her that since Daniel's death occurred following an operation it had to be reported to the coroner and a post-mortem carried out. She and her husband were unwilling for a post-mortem to be carried out. Mrs Carpenter went so far as to telephone the coroner and discussed this issue with him. During the conversation she says she was told that the post-mortem would only involve the operation site. The post-mortem was carried out at the Southampton University Hospital and on 17 February 1987 Daniel was buried in Norfolk near the home of Mr Carpenter's parents. The service was conducted by the same priest who had married Mr and Mrs Carpenter.
At the time when Mr and Mrs Carpenter were married both of them were serving in the Royal Navy and living in the Gosport area. Subsequently each retired from the Navy and they went to live in Norfolk close to Mr Carpenter's parents. By a letter dated 5 March 2001, following an inquiry by Mr and Mrs Carpenter, they learnt that at the coroner's post-mortem Daniel's brain had been removed. The brain and small tissues of it were retained at the hospital. Subsequently they learnt that the brain had been cremated on 11 August 1987 but the hospital still retained a number of wax blocks and slides containing tissue samples taken from the brain and the brain stem. These were returned to the Carpenters and re-united with Daniel's remains at a service which took place on 16 November 2001.
Mrs Carpenter alleges that until March 2001 neither she nor her husband had any knowledge that Daniel's brain had been removed during the post-mortem.
Denise Shorter
Denise Shorter was born on 24 December 1966. On 6 February 1986 she was married to Brian Shorter. They now have two children. In early 1992 Mrs Shorter became pregnant with her first baby. On 9 October 1992 she went into spontaneous labour at approximately 40 weeks gestation. The midwife who examined her at home was unable to detect a foetal heart beat so Mrs Shorter was admitted to the John Radcliffe Hospital in Oxford (the defendant in this action). On admission she was examined and underwent an ultra-sound scan. The result showed that there was no foetal heart beat and Mrs Shorter was told that her baby was dead. At approximately 12.30 pm on 10 October 1992, after a difficult labour, Laura was born dead. Mrs Shorter was kept in the bereavement ward of the hospital for 4 days. During that time Laura's body was kept overnight in the mortuary but brought to her daily so that she and her husband could see her whenever they wished to do so.
On 12 October 1992 Mrs Shorter reluctantly agreed to a request for a post-mortem to be carried out on Laura. The post-mortem took place in the hospital on 13 October and Laura was buried on 20 October 1992. During the course of the post-mortem Laura's brain was removed and retained by the hospital. By a letter dated 2 November 2001 Mrs Shorter learnt for the first time that Laura's heart had been removed and retained by the hospital. Mrs Shorter complains that she only consented to the post-mortem on condition that everything which was taken out at the post-mortem would be put back before Laura was buried. She neither consented to nor was aware that Laura's brain had been retained.
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