Erb’s palsy legal FAQ

Erb’s palsy legal FAQ

Erb's palsy is a serious condition, and when it happens during childbirth, a million questions pop into your head. Was it preventable? Was it someone's fault? What can you even do about it? 

The core issue is this: sometimes, Erb's palsy occurs because a medical professional messed up during delivery. If that happened to your child, there are ways to seek accountability and support for their future. 

For straight answers and to find out what your options really are, call (888) 894-9067. Cerebral Palsy Lawyer Alliance exists to connect families like yours with vetted lawyers who handle these specific, challenging cases.

What exactly is Erb's Palsy, and how does it happen during birth?

Erb's palsy is damage to the brachial plexus – a network of nerves running from the spinal cord in the neck down into the arm. These nerves control movement and sensation in the shoulder, arm, hand, and fingers.

During a difficult birth, especially one involving shoulder dystocia (where the baby's shoulder gets stuck behind the mother's pubic bone after the head emerges), these nerves can get stretched, compressed, or even torn. This can happen if excessive force is used to pull the baby out, or if the baby is maneuvered improperly during delivery. The result is weakness, loss of motion, or even paralysis in the affected arm. The severity ranges widely, from cases that resolve on their own in months to permanent disability requiring lifelong care.

How does that become a legal issue? Is it always medical negligence?

This is where things get specific. An Erb's palsy diagnosis doesn't automatically mean medical malpractice occurred. Childbirth has inherent risks, and sometimes injuries happen despite competent medical care. However, Erb's palsy can be the direct result of medical negligence.

Negligence, in legal terms, means a healthcare provider (like a doctor, midwife, or nurse) failed to provide the level of care that another reasonably careful professional would have provided under similar circumstances, and this failure caused harm. It’s about meeting the accepted standard of care. If their actions (or inaction) fell below this standard and led to the brachial plexus injury, that's negligence.

How do I know if I have grounds for an Erb's Palsy lawsuit? What needs to be proven?

Thinking you have a case and proving a case are different things. To successfully pursue a medical malpractice lawsuit for Erb's palsy, a lawyer, working with medical professionals, generally needs to establish four key elements:

1. Duty: The healthcare provider(s) had a professional duty of care toward the mother and baby. This is usually straightforward to establish in a doctor-patient relationship during delivery.
2. Breach: The provider(s) breached that duty. They failed to act as a reasonably prudent professional would have under the same circumstances. This is the core of the negligence claim – proving they didn't meet the standard of care.
3. Causation: This breach of duty directly caused the Erb's palsy injury. You have to show the injury wouldn't have occurred (or would have been less severe) but for the provider's substandard care.
4. Damages: The injury resulted in actual harm and losses. This includes things like medical expenses (past and future), therapy costs, pain and suffering, potential lost future earnings for the child, and the impact on their quality of life.

Establishing all four points is necessary. Just having the injury (damages) isn't enough if you can't prove the provider breached their duty and that breach caused the specific injury.

What specific mistakes during labor and delivery could be considered negligence leading to Erb's Palsy?

While every birth situation is unique, certain actions or failures during delivery are frequently associated with Erb's palsy cases rooted in negligence. These can include:

• Applying excessive traction or force: Pulling too hard on the baby's head and neck, especially when the shoulder is stuck, is a common cause of brachial plexus stretching or tearing.
• Improper use of delivery tools: Incorrectly using forceps or a vacuum extractor can exert damaging force on the baby's head, neck, and shoulders.
• Failure to recognize and manage shoulder dystocia appropriately: Experienced providers should recognize the signs of shoulder dystocia and know specific maneuvers (like the McRoberts maneuver or suprapubic pressure) to free the shoulder without pulling excessively on the head. Failing to attempt these maneuvers or performing them incorrectly can be negligent.
• Failure to anticipate a difficult delivery: In some cases, risk factors for a large baby or shoulder dystocia (like maternal diabetes or obesity, a previous large baby, or prolonged labor) are present. A provider might be negligent if they fail to recognize these risks and plan accordingly, which might include recommending a Cesarean section (C-section).
• Failure to perform a timely C-section: If labor isn't progressing, the baby is showing signs of distress, or shoulder dystocia is anticipated or encountered and cannot be resolved safely vaginally, a timely C-section might be the appropriate standard of care. Unreasonable delay can constitute negligence if it leads to injury.
• Inadequate communication or teamwork: Poor communication among the delivery team can lead to errors in managing complications like shoulder dystocia.

A lawyer handling these cases will meticulously review the medical records to see if any such failures occurred.

How is medical negligence actually proven in court for an Erb's Palsy case? What evidence is needed?

Proving negligence requires more than just your word or suspicion. It relies heavily on evidence, primarily:

1. Medical Records: These are paramount. They document everything that happened (or should have happened) during prenatal care, labor, and delivery. This includes fetal monitoring strips, doctor's and nurses' notes, measurements, decisions made, and actions taken. Discrepancies, omissions, or entries suggesting improper procedures can be significant.
2. Medical Professional Testimony: This is almost always required in medical malpractice cases. Your lawyer will work with qualified medical professionals (obstetricians, neonatologists, neurologists, nursing professionals) who can:
   • Establish the appropriate standard of care for your specific situation.
   • Review your medical records and provide an opinion on whether the care you received fell below that standard.
   • Explain exactly how the substandard care directly led to the brachial plexus injury (causation).
   • Assess the extent and long-term consequences of the injury (damages).

Without supportive testimony from credible medical professionals, proving negligence is extremely difficult. Gathering and analyzing this evidence is a primary task for the legal team investigating the claim.

Is there a time limit to file an Erb's Palsy lawsuit? What's this "Statute of Limitations" thing?

Yes, absolutely. There are strict deadlines, known as statutes of limitations, for filing medical malpractice lawsuits. If you miss the deadline, you lose your right to sue, permanently.

This is where things get complicated because statutes of limitations vary significantly from state to state. Furthermore, cases involving injuries to minors often have special rules.

• General Rule: Many states have a statute of limitations for medical malpractice that is typically one to three years from the date the injury occurred or the date the injury was reasonably discovered (or should have been discovered).
• Minority Tolling: Because the injured party is a child, many states "toll" the statute of limitations, meaning the clock doesn't start ticking (or runs much slower) until the child reaches the age of majority (usually 18). However, the specifics vary wildly. Some states might give until the child is 20 or 21, while others might have a shorter window that starts from the date of injury but extends longer than the adult limit, perhaps 7 or 10 years, or until a certain age, whichever comes later. Some states have statutes of repose, which place an absolute outside limit regardless of tolling.

You cannot guess this. Finding out the specific statute of limitations applicable in your state for a birth injury case is one of the first and most important steps. Delay can be fatal to your claim. Talking to a Erb's Palsy Lawyer promptly ensures you understand your deadline.

If a lawsuit is successful, what kind of compensation can I recover?

The goal of compensation (or "damages") in an Erb's palsy lawsuit is to provide financial support for the child's current and future needs resulting from the injury, and to compensate for the harm suffered. Compensation can cover a range of losses, generally categorized as:

• Economic Damages: These are tangible, calculable financial losses.
  • Medical Expenses: Costs for surgeries, doctor visits, physical therapy, occupational therapy, medications, assistive devices (braces, splints), diagnostic tests, and any other necessary medical care, both past and future. Erb's palsy can require lifelong monitoring and intervention.
  • Future Care Costs: This can include projected costs for ongoing therapies, potential future surgeries, home modifications if needed, special educational needs, and personal care assistance.
  • Lost Earning Capacity: If the injury is severe and likely to limit the child's ability to work and earn income in the future, compensation may be sought for this projected loss over their lifetime.
• Non-Economic Damages: These compensate for intangible harms that don't have a precise price tag but are very real consequences of the injury.
  • Pain and Suffering: Compensation for the physical pain, discomfort, and emotional distress the child has endured and will likely endure due to the injury and its treatments.
  • Loss of Enjoyment of Life: Compensation for the ways the injury limits the child's ability to participate in and enjoy activities typical for their age and throughout their life.
  • Emotional Distress: For the psychological impact of living with the injury.
  • Disfigurement or Scarring: If there is visible scarring from surgery or asymmetry caused by the injury.

The specific amount awarded varies greatly depending on the severity of the injury, the child's prognosis, the strength of the evidence linking the injury to negligence, the state where the lawsuit is filed (some states cap non-economic damages), and the skill of the legal team presenting the case. 

How much does it cost to hire an Erb's Palsy lawyer?

This is a huge concern for most families, and understandably so. The good news is that most reputable birth injury lawyers handle Erb's palsy cases on a contingency fee basis.

Here's how that works:

• No Upfront Fees: You typically don't pay the lawyer any fees out of pocket to start or work on your case.
• Fees Paid from Settlement/Award: The lawyer's fee is a pre-agreed percentage of the total compensation recovered through a settlement or court verdict.
• No Recovery, No Fee (for Lawyer's Time): If the lawyer doesn't win your case (meaning you don't receive any compensation), you generally owe them nothing for their time and effort.

It's important to clarify case costs or expenses. These are different from the lawyer's fees and cover things like filing fees, obtaining medical records, paying for medical expert reviews and testimony, deposition costs, etc. Some firms may cover these costs upfront and deduct them from the final settlement/award along with their fee, while others might require the client to cover them regardless of the outcome. Always discuss the specifics of the fee agreement and how case costs are handled before hiring a lawyer.

The contingency fee model makes pursuing justice accessible for families who wouldn't otherwise be able to afford complex legal battles.

What should we look for when choosing a lawyer or legal service for an Erb's Palsy case?

Making the right choice here is important. Look for:

• Experience with Birth Injury & Medical Malpractice: These cases are complex and different from general personal injury law. You want a lawyer or firm that frequently handles cases specifically involving birth injuries, including Erb's palsy and brachial plexus injuries. They understand the medical nuances and the legal strategies involved.
• Access to Medical Professionals: Successful cases rely on testimony from qualified medical professionals. Look for lawyers who have established relationships with obstetricians, neurologists, life care planners, and other relevant medical figures who can review records and testify.
• Resources: Medical malpractice litigation is expensive and time-consuming. Ensure the lawyer or firm has the financial resources and staffing to fully investigate your case, hire the necessary professionals, and see it through, potentially to trial if needed.
• Track Record: While past results don't guarantee future outcomes, inquire about the firm's history with similar cases. Have they successfully resolved Erb's palsy or other birth injury claims through settlements or verdicts?
• Clear Communication: You need a lawyer who explains things clearly, keeps you informed, answers your questions, and makes you feel comfortable throughout the process.
• Contingency Fee Agreement: As discussed, ensure they work on a contingency basis and that you understand the fee structure and handling of case costs.

The lawyers within the network of CerebralPalsyLawyer.co are vetted with these considerations in mind, aiming to connect you with capable representation for your specific situation.

Take Control Today

Don't let uncertainty or the complexity of the legal system stop you from finding out where you stand. Get clear, straightforward answers tailored to your situation. 

Call (888) 894-9067 today.