Wednesday, April 12, 2006

Brian Rudman: Money won't right wrongs of aggrieved parents

Congratulations to the 32 families who have abandoned their claims of $90,000 apiece against Green Lane Hospital for keeping their dead babies' organs without consent. Three years ago, when a group of aggrieved parents declared their intention of suing the hospital, I suggested the only winners were going to be the lawyers, and my view hasn't changed.

I've never been able to see how dragging the public health system through the courts trying to extract $7.47 million in damages and compensation would solve anything.

The 32 are some of the 123 claimants who eventually filed a claim in the High Court in December 2004. Another 46 were reported in last weekend's Sunday Star-Times as "undecided" whether to battle on.

The remaining 45 are continuing the fight. But hopefully not for much longer.

How can the money they are seeking right any wrongs? That's already been done. The bad old system has long gone. All the payment of $7.4 million to the aggrieved parents would do - in the unlikely event they get it - is add to the perpetual funding shortages of Auckland public health.

Example? Well how about the news this week of a new rationing system for Auckland heart operation patients.

This follows last month's revelations that Auckland City Hospital did 22 per cent fewer heart-artery bypass operations last year than the year before and 13 per cent fewer artery-expanding angioplasties.

An inability to obtain and/or retain skilled nurses is said to be the reason.

As a result, in weeks to come, ailing heart patients will get either a letter saying they're likely to be operated on within six months or a Dear John letter saying they're on an "active" review list.

In other words, unless those scary chest pains get a lot worse, you're going to have to grin and bear it.

Getting back to the organ library: Perhaps if the enemy had been a bloated multinational drug company I might have said go for it. Take your anger and distress out on those foreign bastards. Make 'em pay.

But in suing Green Lane and its successors, the claimants are in effect suing themselves, together with you and me and everyone else in the community.

Yet all but a few of those working at Green Lane were totally unaware of how the body parts in the hospital museum were being acquired. We didn't even know there was a museum.

More than 1300 babies' organs - mainly hearts - were collected by the teaching hospital between 1950 and 2002. Consent had been obtained from parents in some cases but, for many, the first notification came in 2002 when Green Lane began owning up to parents.

However noble the reasons for creating the museum were, it seems impossible, in these consultative times, to imagine parents were not asked before their dead children's hearts were filed away for future study purposes. But for 50 years, our much-lauded pioneering surgeons did it.

As far as the law goes, the situation is far from clear. Wellington lawyer John Miller, who masterminded this group action, was reported last year as saying the law "isn't clear as to who has the right to do certain things to the deceased".

In another interview he said families whose body parts had been retained, even though Green Lane had asked and been refused permission to keep them, "may have a stronger case".

As far as winning is concerned, Mr Miller's successor as the claimants' lawyer, Roger Chapman, has written to them pointing out they're unlikely to win unless Green Lane's actions gave them a psychiatric illness.

Having to prove yourself mad to strike the jackpot raises all sorts of questions. It also enters the crazy American legal world where they sue each other for vast sums. This is the nightmare scenario our pioneering "no-fault" accident compensation system was designed to head off. It has served us well.

Over the years, the parent spokespeople have said monetary compensation is not the issue. So what is?

The health authorities have shown contrition and 180 hearts have been returned. There have been apologies and changes in procedure so this sort of thing won't happen again.

It leaves me at a loss to understand what more the parents want from us.

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