Erb’s palsy settlement

Erb’s palsy settlement

Having a baby should be one of life's peak experiences. But sometimes, things go sideways during delivery. A difficult birth might lead to an injury called Erb's palsy, leaving your child's arm weak or even paralyzed. This can mean years of therapy, potential surgeries, and lifelong challenges. When this injury happens because a doctor or hospital dropped the ball, you might be looking at an Erb's palsy settlement. 

If your child was diagnosed with Erb's palsy and you suspect it could have been prevented, taking action is important. Cerebral Palsy Lawyer Alliance connects families like yours with vetted lawyers who handle these specific types of cases. 

Call (888) 894-9067 to explore your options.

What Exactly is Erb's Palsy (and Why Are We Talking Settlements)?

Think of the nerves running from the spine, through the neck, and down into the arm. This network is called the brachial plexus. It's like the electrical wiring that controls movement and sensation in the shoulder, arm, elbow, wrist, and hand.

During a tricky delivery, especially if the baby's shoulder gets stuck (a situation called shoulder dystocia), these nerves can get stretched, damaged, or even torn. Erb's palsy is the name given to this injury when it affects the upper nerves of the brachial plexus (specifically, nerves C5 and C6, sometimes C7).

The result? Weakness, loss of feeling, or paralysis in the affected arm. You might notice your baby can't move their arm normally, has a weak grip, or holds their arm awkwardly, sometimes bent at the elbow and held against their side (often called the "waiter's tip" position).

How Bad Can It Get?

The severity varies a lot:

• Neurapraxia: The mildest form. The nerves are stretched but not torn. Think of it like a bruised wire. These usually heal on their own within a few months, often with physical therapy.
• Neuroma: The nerve fibers are damaged and try to heal, but scar tissue forms. This scar tissue presses on the healthy nerve, hindering signals. Recovery is partial, and therapy is key.
• Rupture: The nerve itself is torn, but not where it attaches to the spine. This won't heal on its own and usually requires surgery (like nerve grafts) to restore function.
• Avulsion: The most severe type. The nerve roots are completely ripped away from the spinal cord. Repairing this is extremely difficult, sometimes impossible. Avulsions often lead to permanent paralysis and loss of sensation.

So, why the talk about settlements? Because sometimes, Erb's palsy doesn't just happen. It results from decisions or actions taken (or not taken) during labor and delivery that fall below the expected standard of medical care. When negligence leads to this kind of injury, a settlement becomes a way to secure the financial resources needed for your child's lifelong care and well-being. It connects the injury directly to the actions of the medical team.

When Does a Difficult Birth Become Medical Negligence?

Childbirth is unpredictable, and not every injury means someone messed up. Sometimes, despite the best care, complications arise, and injuries like Erb's palsy occur. However, there's a line between an unavoidable complication and medical negligence.

Medical negligence, or malpractice, happens when a healthcare provider (doctor, midwife, nurse, hospital) fails to provide the accepted "standard of care," and that failure directly causes harm to the patient.

In the context of Erb's palsy, negligence during birth might look like:

• Mismanaging Shoulder Dystocia: This is a big one. Shoulder dystocia occurs when the baby's head is delivered, but one or both shoulders get stuck behind the mother's pelvic bone. There are specific maneuvers (like the McRoberts maneuver or applying suprapubic pressure) that are standard practice to safely free the shoulder. Applying excessive force, pulling too hard on the baby's head or neck sideways, or using the maneuvers incorrectly can stretch or tear the brachial plexus nerves.
• Improper Use of Delivery Tools: Forceps or a vacuum extractor can be helpful in difficult deliveries, but using them incorrectly or with excessive force can put dangerous pressure on the baby's head, neck, and shoulders, leading to nerve damage.
• Failure to Anticipate Complications: Certain factors increase the risk of a difficult delivery and potential Erb's palsy, such as a very large baby (macrosomia), maternal diabetes, a prolonged second stage of labor, or a previous delivery involving shoulder dystocia. Negligence might involve failing to recognize these risk factors during prenatal care or labor and not planning accordingly (e.g., discussing or recommending a C-section).
• Failure to Perform a Timely C-Section: If certain complications arise (like severe fetal distress or recognized, unresolvable shoulder dystocia), a C-section might be the safest option. Delaying this decision or refusing a mother's reasonable request for one (especially if risk factors are present) could be considered negligent if it leads to injury.
• Incorrect Handling of Breech Birth: Pulling too hard on the baby's shoulders or arms during a feet-first delivery can cause nerve damage.

The Road to an Erb's Palsy Settlement: What's Involved?

You suspect medical negligence might have caused your child's Erb's palsy. What happens next? Pursuing compensation usually involves seeking a settlement – an agreement reached with the doctor's, hospital's, or their insurance company's representatives to resolve the claim without going through a full trial. While most cases settle, understanding the whole process is helpful.

Here's a typical roadmap:

1. Connect with Legal Help: The first step is talking to a lawyer who handles birth injury cases. They'll listen to your story, review initial details, and advise whether you might have a valid claim. Many work on a contingency fee basis, meaning you don't pay upfront fees; they receive a percentage of any settlement or award obtained.
2. Investigation and Record Gathering: If you proceed, your lawyer initiates a thorough investigation. This involves obtaining and meticulously reviewing all relevant medical records – prenatal care, labor and delivery notes, hospital policies, newborn assessments, and records of subsequent treatments for Erb's palsy.
3. Expert Medical Opinions: This is a major part. Your lawyer will consult with medical professionals (like obstetricians, neonatologists, neurologists, and life care planners) who can analyze the records. These professionals provide opinions on whether the standard of care was breached and whether that breach directly caused the Erb's palsy. They also help assess the injury's severity and long-term impact.
4. Establishing Liability: Armed with medical records and expert opinions, your lawyer builds the case to prove the four key elements of negligence:
   • Duty: The healthcare provider owed your child a duty of care.
   • Breach: The provider breached that duty by failing to meet the standard of care.
   • Causation: This breach directly caused the brachial plexus injury.
   • Damages: Your child suffered harm (the injury and its consequences) resulting in quantifiable losses.
5. Calculating Damages: This involves determining the full extent of the financial and personal impact of the injury. It's not just about current medical bills but projecting future needs across your child's lifetime. (More on this next).
6. Demand and Negotiation: Your Erb's Palsy Lawyer will typically send a demand letter to the responsible parties (or their insurers), outlining the negligence claim and the damages sought. This kicks off negotiations. There might be back-and-forth discussions, offers, and counteroffers.
7. Settlement Agreement: If negotiations succeed, both sides agree on a compensation amount. A formal settlement agreement is drafted and signed, resolving the claim. This money is often placed in a trust or structured settlement to manage the funds for the child's long-term benefit.
8. Filing a Lawsuit (If Necessary): If negotiations stall or the insurance company denies liability or offers an inadequate amount, your lawyer may advise filing a lawsuit. This doesn't automatically mean a trial; settlement negotiations often continue even after a suit is filed. Filing preserves your right to take the case to court if needed.
9. Trial (Less Common): If no settlement is reached, the case proceeds through the litigation process (discovery, motions) and potentially to a trial where a judge or jury decides the outcome.

The goal throughout is to reach a fair settlement that adequately covers the child's needs without the time, expense, and uncertainty of a trial. However, the ability and readiness to go to trial strengthen your negotiating position.

Decoding the Dollars: What Does an Erb's Palsy Settlement Cover?

When we talk about an Erb's palsy settlement, what are we actually talking about compensating for? It's not just a random number pulled out of thin air. The goal of a settlement is to provide financial resources to cover the past, present, and future costs and consequences associated with the birth injury caused by negligence.

Compensation in an Erb's palsy settlement generally falls into two main categories:

1. Economic Damages (The Measurable Costs):

These are the tangible financial losses directly resulting from the injury. Think of them as the bills you can track.

• Medical Expenses (Past and Future): This is often the largest component. It includes:
  • Costs of surgeries (nerve grafts, nerve transfers, muscle/tendon transfers).
  • Hospital stays and doctor visits.
  • Ongoing physical therapy and occupational therapy (often for many years).
  • Assistive devices (braces, splints).
  • Medications (for pain or other related issues).
  • Projected costs for potential future treatments or complications (like osteoarthritis).
• Lost Future Earning Capacity: If the injury permanently limits the child's ability to work or pursue certain careers later in life, the settlement aims to compensate for this potential lost income.
• Costs of Care: This might include hiring help for tasks the child cannot perform or specialized childcare needs.
• Educational Support: Costs for special education resources, tutoring, or therapies needed to address developmental delays or learning challenges related to the injury.
• Home Modifications: If necessary, costs to adapt the living environment (e.g., modifying bathrooms or kitchens for one-handed use).

2. Non-Economic Damages (The Intangible Losses):

These compensate for the non-financial, personal harms caused by the injury. They are harder to put a price tag on but are just as real.

• Pain and Suffering: Compensation for the physical pain, discomfort, and emotional distress the child experiences due to the injury, treatments, and limitations.
• Loss of Enjoyment of Life: Acknowledging how the injury impacts the child's ability to participate in activities, hobbies, sports, and everyday life experiences compared to uninjured peers.
• Disfigurement or Permanent Impairment: Compensation for physical differences like a visibly smaller or weaker arm, muscle atrophy, or altered posture (like shoulder blade winging), and the associated emotional impact.
• Emotional Distress: Recognizing the psychological impact on the child, such as frustration, anxiety, or self-consciousness related to their disability.

Statutes of Limitations for Erb's Palsy Claims

Thinking about pursuing an Erb's palsy settlement involves understanding a critical legal concept: the statute of limitations. This is a state law that sets a strict deadline for filing a lawsuit. Miss this deadline, and you generally lose your right to sue and seek compensation, no matter how strong your case is.

These deadlines are not the same everywhere; they vary significantly by state. Adding complexity, cases involving injuries to minors often have special rules.

Here’s what you need to know:

• General Timeframe: Each state sets its own window for medical malpractice lawsuits. It might be two years, three years, or another period, usually starting from the date the malpractice occurred or the date the injury was (or reasonably should have been) discovered (the "discovery rule").
• Rules for Minors (Tolling): Because the injured party is a child, most states "toll" the statute of limitations. Tolling means the clock is paused. The standard timeframe might not start running until the child reaches the age of majority (usually 18). After they turn 18, they typically have a specific number of years (like the standard state limit) to file their own lawsuit.
• Absolute Deadlines (Statutes of Repose): Some states also have a "statute of repose," which is an absolute cutoff date, regardless of when the injury was discovered or whether the victim is a minor. This might be 10 years or more from the date of the negligent act.
• Specific State Examples (Illustrative - Always Verify for Your Location):
  • New York: Generally, the medical malpractice statute is 2.5 years (30 months). However, for a minor, the clock is tolled, but the lawsuit must be filed within 10 years from the date of the malpractice. (See N.Y. C.P.L.R. § 214-a, § 208). Some sources suggest the 30-month clock may start on the child's 18th birthday, but the 10-year absolute limit from the act/omission is often cited for infant claims. Special rules apply for municipal or federal hospitals.
  • California: The general rule is 1 year from discovery or 3 years from the date of injury, whichever is earlier. For children under six at the time of the injury, a lawsuit must be filed within three years of the injury or before their eighth birthday, whichever period is greater. For injuries occurring at birth, some interpretations point to a deadline by the child's sixth birthday. (See Cal. Code Civ. Proc. § 340.5, § 364).
  • Texas: The general statute is two years from the negligent act or the end of treatment. Texas also has a 10-year statute of repose. For children injured under the age of 12, a claim may be filed up until their 14th birthday. (See Tex. Civ. Prac. & Rem. Code § 74.251).

The Takeaway: These rules are complex and interpreted differently. State laws change. The only way to know the specific deadline for your situation is to consult with a lawyer familiar with birth injury law in your state as soon as possible. Waiting too long can permanently close the door on your ability to seek compensation for your child's injury.

Secure Your Child's Future After an Erb's Palsy Diagnosis

Don't navigate this complex process alone. Call (888) 894-9067 today for a connection to a lawyer who will help secure your child's future.