Woman wins cost of surrogate baby after blunder leaves her childless

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The Independent Online
A WOMAN who gave birth to two stillborn babies and had her womb removed before the age of 20 because of a medical blunder has won a landmark damages claim to pay for a surrogate birth.

Patricia Briody spent 10 years battling the medical and legal establishments through a series of court hearings and at one stage represented herself. She is now undergoing tests at a private fertility clinic in London in the hope that she can have children using her own eggs, which would be carried by a surrogate mother.

The case, which ended last week, will make legal history if, as expected, the court takes account of the cost of surrogacy treatment in deciding the sum of damages.

Mrs Briody, 45, said she had been quoted a price of pounds 55,000 by the London Fertility Centre in Harley Street for two surrogate births.

However, she fears that after her 10-year fight she is now too old to provide viable eggs and may have to accept donated eggs from a younger woman.

Mrs Briody, of St Helens, Merseyside, had a malformed pelvis which meant she could never have children naturally but the problem was not spotted by the hospital consultant in charge of her care, even after her first pregnancy had ended with an emergency Caesarean and a stillborn child. When she gave birth a second time to a stillborn child her womb burst and she had to have an emergency hysterectomy.

Speaking to The Independent, she said: "If I had not gone to court I would never have found out why my babies died. That is what kept me going.

"I just needed to know what happened. It is not a minor thing to lose two babies and your womb at the age of 19. I was very young and it affected my whole life. Now I would like an apology."

The case is unique because of the 25-year gap between the medical mishap in 1973 and the decision taken by the courts in 1998. At one stage, Mrs Briody says she was berated by her lawyers for refusing to accept an out- of-court settlement of pounds 60,000 from the health authority which was later raised to pounds 100,000. She is now expected to win a sum in excess of six figures, which would make legal history.

Her solicitor Helen Barry, of EAD Solicitors in Liverpool, said: "She is a very brave, strong minded woman. Many in her position would certainly have given up long ago."

Professor Ian Craft, medical director of the London Fertility Centre, said he felt "tremendous sympathy" for Mrs Briody. "She is very determined but she is realistic too. She realises using her own eggs she has only a minimal change of success."

Childless, barren and only newly married, she faced a bleak future when the blunder occurred. Over the next 17 years she coped by taking in foster children until a chance meeting in 1989 with a lawyerwho suggested the hospital that had destroyed her hopes of a family had a case to answer.

With little money she embarked on a 10-year battle which culminated in March 1998 with a finding of medical negligence against the St Helens and Knowsley health authority in Merseyside.

Last Wednesday, the Court of Appeal rejected a bid by the authority to have the case thrown out, marking the formal end of the action.

Mrs Briody, a primary school teacher, has not given up hope of having a family of her own, though the courts have not yet decided whether to include the cost of surrogacy in the payment. Yesterday, Mrs Briody, who has a new partner, said she had been driven by a sense of injustice.

She changed solicitors six times and was involved in a debate with one barrister in which she claims he flung his wig on the table, exasperated.

She said: "I feel let down by the medical profession, disregarded and treated as a non-person. I don't think I will ever completely recover from it."

Mrs Briody ordeal began in 1972 at the Cowley Hill Hospital in St Helens. During labour the baby became stuck and she needed an emergency Caesarean but by the time an anaesthetist was available, her son was dead.

A year later she was pregnant again and was admitted to Whiston hospital, St Helens. "I started haemorrhaging and I was in terrible agony. They had left me in labour so long that my uterus exploded and the baby was catapulted into my abdominal cavity."

Doctors said that she almost bled to death and they had saved her life. It was not until she began her legal action that she learnt she should never have been allowed to attempt a normal delivery because her pelvis was malformed and was too narrow to accommodate the baby's head.

Had her consultant obstetrician, Cecil Moss, diagnosed the problem in advance and marked her down for a planned Caesarean, her babies would have been born alive and her womb left intact. It was his failure to do so that formed the basis of her negligence claim two decades later.

Over the next decade, she gradually re-built her life. She became a foster carer and was planning to adopt when her marriage, which had been under strain since the tragedy, finally collapsed.

In 1989 she told her solicitor she would like to find the graves of her two stillborn babies.The hospital had disposed of the bodies but had never told her where they were buried.

The first legal hurdle she had to overcome was to persuade the court that it should hear her case, despite the 20-year lapse. At first she failed, losing her legal aid, but won an appeal in 1995 when Mr Justice Ian Kennedy said that her case was unique.

The day before the hearing, she received an offer from the health authority of a pounds 60,000 settlement. She refused."I and my partner, John, spent three hours in the barrister's chambers. He told us in no uncertain terms that it was a reasonable offer."

She said she was told by him that if she did not accept the offer then he would find it difficult to continue to represent her. That night Mrs Briody was up late preparing questions to put to witnesses herself. The next morning, the negotiations continued in a side room of the court.

"He told me that if I went ahead I could be liable for costs of pounds 30,000 and I could be bankrupted. When I went into court my knees were quaking."

The judge adjourned the trial and, with the help of a charity, Mrs Briody found a new legal team specialising in medical negligence. The team recovered her legal aid, the case went to trial in March 1998 and she won.

However, her fight was still not over. The health authority appealed and the day before the appeal was due to be heard last February, it offered her a pounds 100,000 settlement.

Again, she refused.

"It is not a minor thing, what happened to me at 19. I still want children and I will have to pay for the surrogacy treatment," she said.

Now the case has entered its final stage - negotiations over the size of the damages award - the health authority is demanding she see its own fertility specialist before they agree the damages sum

Mrs Briody said: "Even though I have won they are still in the driving seat. The longer it goes on the less chance I have of having my own children with my own eggs.

"No one has ever had damages for surrogacy. It's a unique case and it deserves unique damages."

In a statement, St Helens and Knowsley health authority said: "Although this case goes back many years, proceedings only began in 1992.

"There were numerous difficulties in the case which have now been resolved in Mrs Briody's favour.

"The health authority regrets any distress caused to Mrs Briody as a result of the events that took place."

A new system for deciding medical negligence claims designed to speed up the process comes into force today.