Mother who gave birth after failed abortion 'has no grounds' to sue NHS

Stacy Dow, 21, of Perth, has launched a 250,000 civil damages claim against Tayside University Hospitals NHS Trust for the "financial burden" of raising her daughter Jayde, who she had when she was 16.

Miss Dow decided to have an abortion when she became pregnant with twins. But a few months later she discovered she was still pregnant with one of the twins, by which time a second abortion was too late.

Miss Dow is said to have suffered "distress and anxiety" from the discovery of her continued pregnancy and "pain and discomfort" when she had her daughter by Caesarean section. She also argues she has suffered a loss of earnings because she is a single mother.

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

Hospital bosses, who are defending the action, say Jayde is a normal, healthy child and that the 250,000 claim is excessive. They accept one twin was not terminated during the abortion, but say a doctor carried out the proper checks after the termination and could find no evidence of a remaining foetus.

Miss Dow was given a contraceptive injection after the abortion and advised that it could induce side-effects of weight gain and an erratic menstrual cycle. Miss Dow claims she thought the injection was to blame for her subsequent increase in weight and the cessation of her periods.

But she returned to her doctor after 33 weeks - and was advised that one of the foetuses had survived the abortion and was just seven weeks from term. Because of the late stage at which the surviving pregnancy was discovered, there was no legal option to carry out a second abortion.

Sheriff Michael Fletcher will decide how the case will proceed after legal discussions at Perth Sheriff Court.

Advocate David Stephenson, representing the hospital authority, said yesterday that no contract had existed between Miss Dow and her consultant when she was told an abortion would be carried out, so her claim was not relevant. "Nothing said to the pursuer [ie Miss Dow] by the doctor could or did mention a warranty that her pregnancy would be terminated," he said.

He said: "NHS patients do not normally contract with their health trust or health boards for the provision of medical service. These services are delivered as part of a statutory obligation."

And he added that only in "truly extraordinary" circumstances would any sort of contract between a doctor and a patient be entered into. "Nothing is said that could take this case out of the ordinary class of NHS treatment," he said.

Andrew Smith QC, representing Miss Dow, said the case was "extremely important" and almost unique in its legal considerations. According to court papers, Miss Dow - who had been on the contraceptive pill until it made her ill - had been expecting dizygotic twins (non-identical from two separate eggs) who would both have been viable.

Her action states: "This [the birth] was caused by the fault and negligence of the medical staff. They ought to have known that further inquiry following surgery was necessary to establish the success of the termination of both foetuses.

"They had a duty to take reasonable care to establish that the termination had been successful. They ought to have known the contraceptive jag could have masked the symptoms of continuing pregnancy. But for these failures, she would not have suffered the loss, injury and damage she has."

Sheriff Fletcher adjourned the case until March 29.