Hat tip to Marti
AURA SABADUS AND SHÂN ROSS
A YOUNG mother who lost a groundbreaking battle for £250,000 compensation after giving birth to an "aborted" twin daughter yesterday vowed to appeal against the decision.
Stacy Dow launched the action - the first of its kind in Britain - earlier this year, convinced she had not been given proper warning by NHS medics that termination operations do not always guarantee success.
But following a court's decision to reject the action, Miss Dow, 21, of Perth, said she was determined to fight on.
"I found out on Friday that my claim had been rejected," she told The Scotsman. "It was a letter written in legal terms and I did not know what to think. It was difficult to understand.
"I'm still determined to continue. I'll talk to my lawyer and see what he thinks is best."
The single mother decided to take the case to court, hoping to force the hospital to pay for the upbringing of her child.
Five years ago, at the age of 16, Miss Dow discovered she was pregnant. After much soul-searching and fearing she could not cope with premature motherhood, she went to Perth Royal Infirmary for an abortion.
But seven weeks from term, she was told that one of the foetuses had survived the abortion and in August 2001 she gave birth to a baby daughter, Jayde.
Cash-strapped and unemployed, Miss Dow hoped the £250,000 compensation would help her to raise the child, now aged five. But last week at Perth Sheriff Court, Sheriff Michael Fletcher rejected the bid against Tayside University Hospitals NHS Trust, saying patients could not expect a legally binding contract with their doctor.
"All this over the past months has been a stress, and sometimes I don't know if I can go on," Miss Dow said.
"People tell me this is the way big organisations like the health trust operate, to wear you down - and I know that's what's happening to me.
"I'm still living at my mum and dad's, waiting to start a proper life on my own with Jayde.
"Jayde started school two weeks ago and is enjoying it. I still want to do the best for her, but it's exhausting dealing with the legal side."
Shortly after reaching a decision on Friday, Sheriff Fletcher said that simply because a doctor had used the word "termination" during a conversation with Miss Dow, it did not guarantee success. "I am of the view that a proof in this case is not necessary to decide the question of whether the conversation amounted to a guarantee of success of the operation," he said.
"In order to be held to have guaranteed success of the operation, the doctor would have had to have expressly said he was doing so.
"He could not be held to have done so impliedly, or because he had used the word termination," the sheriff said in findings issued at Perth.
"He would have had to have had the intention to give a warranty of success, and it would not matter a great deal what she subjectively thought the use of the word 'termination' implied." Sheriff Fletcher said that except in unusual circumstances, the relationship between a patient and his NHS doctor was not a contractual one.
He added that the situation would have been different if Miss Dow had been a private patient, as the doctor/patient relationship then became a contractual one.
NHS trust advocate David Stephenson added: "NHS patients don't contract with health trusts or health boards for medical treatment. There's no contractual relationship between the NHS patient and the NHS service provider."