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Last Updated: Monday, 19 June 2006, 14:00 GMT 15:00 UK
Failed abortion 'warranty breach'
Stacey Dow with daughter - Perthshire Picture Agency
Miss Dow's daughter Jayde is now four-years-old
A mother seeking damages from a health authority has claimed doctors breached a "warranty" by failing to abort one of her twins.

Stacy Dow, 21, is claiming 250,000 compensation to cover the cost of raising the one child which survived the failed attempt to abort twins.

A court heard doctors effectively give a warranty that the abortion, at Perth Royal Infirmary, would work.

NHS Tayside denied liability in the case at Perth Sheriff Court.

Miss Dow was told that she would be having an abortion and would no longer be pregnant, the court was told.

'Breach of contract'

Her lawyer Andrew Smith told the civil hearing she had not been warned that the procedure might not work and assumed it was guaranteed to be successful.

He said: "The big issue is the question of whether you can bring a claim for breach of warranty in a case where there's a promise to achieve a result - an abortion - and that fails.

"We are saying that if no warning is given then there is a breach of warranty."

Ms Dow, who had her daughter Jayde when she was 16, made the claim against Tayside University Hospitals NHS Trust, which has since become part of NHS Tayside.

She say the trust failed to properly carry out the abortion at Perth Royal Infirmary in January 2001, constituting a breach of contract.

She said she did not realise she was still pregnant until it was too late to have a further abortion of the surviving foetus.

'Statutory obligation'

But the health authority stated that doctors did warn Miss Dow about the possibility she could still be pregnant.

Advocate David Stephenson, representing the trust, said Miss Dow was wrong to suggest there was a legal contract between her and the hospital.

He told the court that because the NHS was a public body it had a statutory obligation to treat patients, but there was no "contract" between the patient and the doctor.

"What she is saying is she had a contract," Mr Stephenson said.

"NHS patients don't contract with health trusts or health boards for medical treatment."

Sheriff Michael Fletcher, who is hearing the case, will decide later whether it should go forward to the next stage - a proof with both sides giving evidence.


SEE ALSO
Hearing for abortion bid mother
20 Mar 06 |  Scotland
Damages claim for abortion twin
07 Dec 05 |  Scotland

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