Erb’s palsy and medical malpractice

Erb’s palsy and medical malpractice

Maybe you just got the diagnosis. Erb's palsy. Words that hit you like a ton of bricks. Your mind is racing – what is this? Is it permanent? How did this even happen? And somewhere in that swirl of fear and confusion, a tougher question surfaces: Could this have been prevented? Did someone mess up?

The hard truth is, sometimes, yes. Erb's palsy, a type of nerve injury affecting a baby's arm, can result from complications during birth. And sometimes, those complications happen because the medical team didn't act correctly. 

If you're asking these hard questions, you're not alone. At Cerebral Palsy Lawyer Alliance, our network of lawyers helps families navigate these complex situations. Call (888) 894-9067 to connect with a local lawyer who can listen to your story and explain your options.

So, What is Erb's Palsy, Really?

Erb's palsy, sometimes called brachial plexus birth palsy, happens when a specific network of nerves near the neck—the brachial plexus—gets damaged. Think of these nerves like electrical wires running from the spinal cord down the shoulder, arm, and hand, controlling movement and feeling. Specifically, Erb's palsy usually involves damage to the upper nerves in this network (the C5 and C6 nerves).

When these nerves get stretched, bruised, or even torn during birth, the signals get interrupted. The result? Weakness, loss of movement, or paralysis in the affected arm, shoulder, elbow, wrist, or hand.

Signs You Might Notice:

• One arm seems limp or hangs oddly, maybe turned inward with the wrist bent (often called the "waiter's tip" position).
• The baby isn't moving one arm as much as the other.
• Weak grip in one hand.
• Lack of Moro reflex (startle response) on the affected side.
• Apparent pain when the arm, shoulder, or neck is touched.

The severity depends on the type of nerve damage:

• Neuropraxia: The nerve is stretched or shocked but not torn. Good chance of recovery.
• Neuroma: The nerve tried to heal after being damaged, but scar tissue formed, pressing on the healthy nerve and hindering signals. Partial recovery is possible.
• Rupture: The nerve itself is torn, but not where it attaches to the spine. It won't heal on its own; surgery might help.
• Avulsion: The nerve roots are completely torn away from the spinal cord. This is the most severe type, and recovery of function is much harder, sometimes impossible without nerve grafts or transfers.

Knowing the type and severity helps determine the treatment path, which can range from physical therapy to surgery. But first, how does this injury happen in the first place?

How Nerve Damage Can Occur

Childbirth is intense, no doubt about it. But Erb's palsy isn't just a random bad outcome. It typically happens because the baby's neck and head get stretched away from their shoulder during delivery. This excessive stretching puts strain on the brachial plexus nerves.

When Does This Stretching Happen?

The most common scenario involves shoulder dystocia. This is a delivery complication where, after the baby's head emerges, one or both shoulders get stuck behind the mother's pelvic bone. It’s a medical emergency. To free the baby, the delivery team has to perform specific maneuvers. If they pull too hard on the baby's head or neck, or apply force incorrectly while trying to dislodge the shoulder, those delicate nerves can stretch or tear.

Other situations that can lead to this type of nerve injury include:

• Excessive pulling on the shoulders during a head-first delivery.
• Too much pressure on the baby's raised arms during a breech (feet-first or bottom-first) delivery.
• Improper use of delivery tools like forceps or vacuum extractors, which can exert extra force on the baby's head and neck area.

Certain factors increase the risk of a difficult delivery where these injuries might occur, like a very large baby (macrosomia), maternal diabetes, a small maternal pelvis, prolonged labor, or an abnormal fetal position (like breech). But having risk factors doesn't automatically mean an injury is unavoidable. The key question often becomes: how did the medical team manage the delivery, especially if complications arose?

From Difficult Birth to Medical Malpractice: Drawing the Line

Okay, so the delivery was tough, and your child has Erb's palsy. Does that automatically mean malpractice occurred? No. Childbirth has inherent risks, and sometimes, despite the best care, injuries happen.

Medical malpractice isn't just about a bad outcome. It's about whether the healthcare provider (doctor, midwife, nurse) or hospital failed to meet the accepted standard of care, and that failure directly caused your child's injury.

What's the "Standard of Care"?

Think of it as the baseline level of competence. It’s what a reasonably skilled and careful healthcare professional, with similar training and experience, would have done in the same situation. 

When Might Actions (or Inactions) Become Negligent in an Erb's Palsy Case?

Here are some examples where a delivery team's conduct might fall below the standard of care and potentially lead to an Erb's palsy injury:

• Failure to Anticipate & Manage Shoulder Dystocia: Did they recognize risk factors (like a large baby estimate or maternal diabetes) beforehand? During delivery, did they recognize the "turtle sign" (baby's head emerges then retracts)? Did they use appropriate, recognized maneuvers (like the McRoberts maneuver or suprapubic pressure) correctly and promptly? Or did they panic and apply excessive traction (pulling) on the baby's head?
• Applying Excessive Force: Even without shoulder dystocia, using too much force to pull the baby out can stretch the brachial plexus nerves. This is a judgment call, but medical witnesses can assess if the force used was inappropriate.
• Improper Use of Instruments: Were forceps or a vacuum extractor necessary? Were they applied correctly, or did their misuse contribute to excessive pulling or pressure on the head/neck?
• Failure to Recommend a Cesarean Section (C-Section): If significant risk factors were present (e.g., suspected macrosomia, previous shoulder dystocia, labor not progressing), should a C-section have been offered or recommended as a potentially safer alternative? Was a mother's request for a C-section unreasonably denied?
• Delayed Intervention: Did the team wait too long to act when complications arose, increasing the difficulty and potential for injury?

Proving that one of these failures occurred and that it directly caused the nerve damage is the core challenge in an Erb's palsy malpractice claim.

The Legal Fight: What It Takes to Prove Malpractice

Just suspecting negligence isn't enough. The legal system requires proof. To win a medical malpractice lawsuit for Erb's palsy, your legal team generally needs to establish four key things:

1. Duty: A doctor-patient relationship existed. This is usually straightforward – the doctor/hospital was hired to deliver the baby.
2. Breach of Duty: The healthcare provider failed to meet the standard of care. This is the toughest part. It involves showing that the provider acted (or failed to act) in a way that a reasonably competent peer wouldn't have under similar circumstances. Examples include those listed in the previous section, like applying excessive force or mismanaging shoulder dystocia.
3. Causation: The provider's breach directly caused the Erb's palsy. It wasn't just a coincidence. You need to show that if not for the provider's negligence, the nerve injury likely wouldn't have happened or would have been less severe.
4. Damages: Your child suffered actual harm as a result. This includes the physical injury (weakness, paralysis), the cost of medical treatments, therapy, potential future limitations, and pain and suffering.

How is This Proven?

• Medical Records: These are primary evidence. Delivery notes, fetal monitoring strips, prenatal records, and postnatal assessments provide a timeline and details about what happened. Clear, detailed documentation by the medical team is expected; contradictions or missing information can raise questions.
• Medical Witness Testimony: Lawyers handling these cases work with medical professionals (obstetricians, neurologists, pediatricians) who can review the records and testify about the standard of care, whether it was breached, and whether that breach caused the injury. This testimony is fundamental.
• Your Account: Your recollection of events during labor and delivery can also be relevant.

Don't Wait: The Clock is Ticking (Statutes of Limitations)

Here’s a critical piece of information: You don't have forever to decide whether to pursue legal action. Every state has laws called statutes of limitations that set strict deadlines for filing lawsuits. Miss the deadline, and you lose your right to sue, no matter how strong your case might be.

For medical malpractice, these deadlines vary significantly by state. Compounding this, birth injury cases involving minors often have special rules.

• General Rule: Many states have a specific timeframe for medical malpractice suits, often ranging from one to three years from the date the injury occurred or was discovered.
• Tolling for Minors: Because a child cannot file a lawsuit themselves, many states "toll" (pause) the statute of limitations for minors. This means the clock might not start running until the child reaches the age of majority (usually 18). However, there are often limits.
• Statutes of Repose: Some states also have an absolute deadline, known as a statute of repose, which limits how long you have to file regardless of when the injury was discovered or when the child turns 18.

Example: New York

In New York, the general medical malpractice statute of limitations is 2.5 years (30 months) from the act or omission (N.Y. C.P.L.R. § 214-a). However, for injuries to infants, the law generally allows the time limit to be tolled (paused). Critically, for medical malpractice claims based on injuries sustained at birth, N.Y. C.P.L.R. § 208 imposes an outside limit: the lawsuit must generally be started within 10 years from the date the malpractice occurred. This means even with tolling, parents usually need to file before the child's 10th birthday. (Note: Laws change; always verify current statutes with a local attorney).

The takeaway? Time matters. Waiting can make gathering evidence harder and risk missing the deadline entirely. If you suspect malpractice might have caused your child's Erb's palsy, consulting an Erb's palsy Lawyer sooner rather than later is advisable.

What Does Compensation Cover? Addressing Lifelong Needs

If a malpractice lawsuit is successful, the compensation (often obtained through a settlement negotiation or, less commonly, a trial verdict) is intended to cover the wide-ranging impacts of the injury on the child and family. The goal is to provide the financial resources needed to manage the condition and its consequences.

Damages awarded in Erb's palsy cases can include funds for:

• Medical Expenses:
  • Past costs (doctor visits, diagnosis, initial treatments).
  • Future projected costs (ongoing physical and occupational therapy, potential surgeries like nerve grafts or muscle transfers, medications, specialist consultations).
• Assistive Devices: Costs for splints, braces, adaptive equipment for daily living (special utensils, dressing aids).
• Rehabilitation: Physical therapy to improve range of motion and strength; occupational therapy to help with fine motor skills and daily tasks.
• Pain and Suffering: Compensation for the physical pain, emotional distress, and psychological impact of the injury.
• Loss of Enjoyment of Life: Acknowledging how the injury might limit the child's ability to participate in activities.
• Future Lost Earning Capacity: If the injury is permanent and likely to affect the child's ability to work later in life.
• Home/Vehicle Modifications: If adaptations are needed for accessibility.
• Parental Costs: Sometimes includes lost wages if a parent had to stop working to provide care, or costs for specialized childcare.

Take Control: Get Answers About Your Child's Erb's Palsy

Take the first step toward clarity and potential compensation. Call (888) 894-9067 today for a connection to a lawyer ready to listen and help.