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AB v Leeds Teaching Hospital NHS Trust
sub nom Organ Retention Group Litigation, Re
[2004] EWHC 644 (QB), [2005] QB 506, [2005] 2 WLR 358, [2004] 3 FCR 324, [2004] 2 FLR 365, [2004] Fam Law 501, 77 BMLR 145, [2004] NLJR 497, (2004) Times, 12 April, [2004] All ER (D) 506 (Mar)
Court: QBD
Judgment Date: 26/03/2004
NEGLIGENCE - DUTY OF CARE - MEDICAL PRACTITIONER - POST MORTEM - REMOVAL AND RETENTION OF ORGANS FROM CHILD'S BODY - EXISTENCE OF DUTY OF CARE
TORT - WRONGFUL INTERFERENCE WITH CORPSE - POST MORTEM - REMOVAL AND RETENTION OF ORGANS FROM CHILD'S BODY - EXISTENCE OF TORT
In 1999 and 2000, it emerged that for some years the defendant hospitals had retained tissue from the bodies of deceased children taken at or after post-mortem without the knowledge or consent of the parents.The claimants were three lead claimants in group litigation entitled Nationwide Organ Group Litigation. In each case, they consented to the carrying out of a post mortem, but were not informed in detail of the procedure or that organs might be removed and retained. Where organs had been retained, they were often treated in some way so as to preserve them.The claimants alleged, inter alia, (i) that in removing and retaining organs from their babies' bodies, the defendants committed the tort of wrongful interference, which it was alleged existed in English law, and (ii) that the defendants owed the parents a duty of care, and that they were in breach of that duty of care.
Held - (1) There could be no action for wrongful interference with the body of a child in the circumstances of the lead cases.Given that the post mortems were carried out with consent, at the time the organs were removed from the bodies the action of removing them was lawful, and at the time those organs were removed, they were lawfully in the possession of the pathologists undertaking the post mortem or any other pathologist properly instructed to carry out a further examination. Although a body could not, in general be owned, the pathologists exercised work and skill to the body parts so that those parts became capable of possession. The claimants had no right of burial, and the removal and retention of the body parts was lawful absent a specific request for their return;
(2) Doctors could owe a duty of care to a mother after the death of her baby on a doctor-patient relationship.The issue of whether a duty of care existed depended on whether or not there existed a doctor-patient relationship between the clinicians and the parents when the consent to the post mortem was obtained. In the case of a doctor treating a mother who had had a child which had died, the doctor would have a duty to advise the mother about future pregnancies. The outcome of a post mortem was relevant to that issue. Once the existence of a duty of care was established, that duty extended to giving some explanation of the post mortem procedures of which the removal and retention of organs was a relevant part. In the circumstances of the instant case, that duty extended to giving the parents an explanation of the purpose of the post mortem and what it involved, including alerting them to the fact that organs might be retained.
