Dow v. Tayside University Hospital NHS Trust [2006] ScotSC 107 (05 September 2006)

Dow v. Tayside University Hospital NHS Trust [2006] ScotSC 107 (05 September 2006)

The relationship between NHS patient and Health Board is statutory, not contractual, unless an express contract is clearly established. The use of the term 'termination' by the doctor did not amount to a contractual warranty or guarantee of success. The pursuer’s pleadings did not set out a relevant case of contract or warranty, and even if proved, could not establish liability. The action was therefore irrelevant and dismissed.

Citation
[2006] ScotSC 107
Parties
Pursuer: Stacey Ann Dow; Defender: Tayside University Hospitals NHS Trust
Jurisdiction
Scotland
Judgment Date
05 September 2006
Procedural Posture
Civil / Motion to Dismiss (plea in Law)
Outcome
action dismissed
Legal Topics
Breach of Contract, Medical Treatment Under NHS, Warranty of Success in Medical Procedures, Statutory Duty of Care
Contract Law Medical Law Breach of Contract Medical Treatment Under NHS Warranty of Success in Medical Procedures Statutory Duty of Care

Case Brief

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Parties

Stacey Ann Dow

Pursuer

Tayside University Hospitals NHS Trust

Defender

Procedural Posture

Civil / Motion to Dismiss (plea in Law)

Legal Issues

  1. 1 Whether a contractual relationship existed between NHS patient and Health Board for provision of medical services
  2. 2 Whether a doctor’s use of the term 'termination' constituted a contractual warranty of success for a surgical procedure
  3. 3 Whether damages for the cost of raising a child are recoverable in contract for failed sterilisation/termination

Ratio Decidendi

The relationship between NHS patient and Health Board is statutory, not contractual, unless an express contract is clearly established. The use of the term 'termination' by the doctor did not amount to a contractual warranty or guarantee of success. The pursuer’s pleadings did not set out a relevant case of contract or warranty, and even if proved, could not establish liability. The action was therefore irrelevant and dismissed.

Court Disposition

action dismissed

Orders

  • Sustains the defenders' first plea in law
  • Dismisses the cause