An Erb's palsy lawsuit is a legal claim pursued when medical negligence during childbirth is believed to have inflicted this specific type of nerve injury upon a baby's arm and shoulder.
We'll break down what this means for you and your child. We explore why this injury sometimes happens and what steps you can take if you believe your child's Erb's palsy could have been prevented with more careful medical attention.
If you're facing this situation, you are not alone. Resources are available to help you seek answers and support. Call an experienced Erb's Palsy Lawyer through the Cerebral Palsy Lawyer Alliance at (888) 894-9067; our network of lawyers is ready to listen to your story and explain your options.
Your Child's Erb's Palsy: Understanding the Injury First
What Erb's Palsy Actually Is
Erb's palsy affects the nerves controlling the muscles in the arm and hand. This condition results from damage to the brachial plexus. Think of the brachial plexus as a complex network of nerves, like an electrical wiring system, running from the spine, across the neck, and into the shoulder, arm, and hand.
When these nerves are damaged, communication between the brain and the arm muscles is disrupted. The symptoms of Erb's palsy vary widely. They might appear as weakness or numbness in the arm, or in more severe cases, result in total paralysis of the affected limb.
How Does This Injury Happen During Birth?
Erb's palsy is often linked to a difficult or traumatic delivery. A primary cause is the excessive pulling or stretching of the baby's head, neck, or shoulders as the baby passes through the birth canal. This force overstretches the brachial plexus nerves, causing them to tear or detach from the spinal cord.
While some stretching might occur during any birth, certain delivery practices or complications significantly heighten the risk of this specific injury.
The Tough Question: Was It Medical Negligence?
When Birth Injuries Aren't Just "Accidents"
Some birth injuries happen despite everyone providing the best possible medical care. Childbirth has inherent risks. However, other injuries result from a failure to meet the accepted standard of medical care.
Medical negligence, in plain terms, means a healthcare provider – a doctor, nurse, or hospital – didn't act as a reasonably careful professional in their field should under similar circumstances. If this failure directly harmed your baby, it constitutes medical negligence. This has nothing to do with bad intentions; it's about a deviation from the level of care expected from medical professionals.
Red Flags: Situations That Often Point to Negligence in Erb's Palsy Cases
Certain situations during labor and delivery are recognized "red flags" that suggest medical negligence played a role in causing Erb's palsy. If your child's birth involved any of the following, it warrants a closer look into the care provided.
- Mishandling Shoulder Dystocia: This is a significant factor. Shoulder dystocia occurs when the baby's head has been delivered, but one of the shoulders gets stuck behind the mother's pubic bone. Established obstetric maneuvers exist to safely release the baby's shoulder. If these maneuvers are performed incorrectly, or if the delivering physician applies excessive force or traction on the baby's head and neck, the brachial plexus nerves are severely damaged.
- Ignoring Known Risk Factors: Several conditions increase the likelihood of a difficult birth and shoulder dystocia. Failing to recognize and appropriately manage these risks is a form of negligence. These risk factors include:
- A very large baby, a condition known as fetal macrosomia.
- The mother having gestational diabetes, which often leads to larger babies.
- A labor that is unusually prolonged or difficult.
- A previous delivery complicated by shoulder dystocia.
- Improper Use of Delivery Tools: Instruments like forceps or vacuum extractors are sometimes used to assist in delivery. However, if these tools are used improperly, with too much force, or in a way that twists the baby's head or neck inappropriately, they exert dangerous pressure and cause nerve damage leading to Erb's palsy.
- Not Performing a Timely C-Section: When there are clear signs of fetal distress, or when known risk factors make a vaginal delivery too dangerous for the baby (or mother), failing to perform a Cesarean section in a timely manner is considered negligent if it leads to injury.
- Poor Management of Breech Births: Babies presenting in a breech position (feet or buttocks first) carry higher risks of complications during vaginal delivery, including brachial plexus injuries. These births require skilled and careful management.
- Applying Excessive Force: Even if no specific complication like shoulder dystocia is documented, applying too much pulling, traction, or twisting on the baby during any stage of delivery causes Erb's palsy.
The Lawsuit Journey: What to Expect
Step 1: Talking to a Lawyer Who Gets It
The first and most important step is to consult with a lawyer who has experience in birth injury cases, specifically those involving Erb's palsy. Not all personal injury lawyers have this focused background. You need someone who understands the medical nuances and the legal strategies involved.
They will listen to your story, review any initial medical information you have, and provide a preliminary assessment of whether you might have a case. This is where Cerebral Palsy Lawyer Alliance connects you with legal professionals suited to evaluate your situation.
Step 2: The Investigation
If an attorney believes there are grounds for a case, a thorough investigation begins. This involves:
- Gathering all relevant medical records for both the mother and the child, including prenatal records, labor and delivery notes, and postnatal care information.
- Having these records meticulously reviewed by medical professionals, often including obstetricians, neurologists, and neonatologists. These professionals help determine if the medical care provided fell below the accepted standard of care and whether that failure was the likely cause of the Erb's palsy.
Step 3: Filing the Lawsuit
If the investigation and expert reviews indicate that medical negligence likely caused your child's Erb's palsy, your lawyer drafts and files a formal complaint in court. This document outlines the allegations against the healthcare providers or hospital and initiates the legal proceedings.
Step 4: Discovery (The Info Exchange)
Once the lawsuit is filed, a phase known as "discovery" begins. During discovery, both sides (your legal team and the defendants' legal team) exchange information, documents, and evidence relevant to the case. This includes:
- Written questions (interrogatories) that each side must answer under oath.
- Requests for production of documents, such as hospital policies or staff records.
- Depositions, which are sworn testimonies given by parties and witnesses (including medical staff and potentially parents) outside of court, transcribed by a court reporter.
Step 5: Negotiation and Settlement
Many, if not most, Erb's palsy lawsuits are resolved through a settlement before they reach a trial. A settlement is an agreement where the defendants (typically their insurance company) agree to pay a sum of money to the plaintiff (your child, through you) to resolve the case.
Negotiations occur at various points during the lawsuit process. Settlements are often favored because they provide a definite outcome and avoid the additional stress, time, and expense of a trial, as well as the uncertainty of a jury verdict.
Step 6: Trial
If a settlement is not reached that is acceptable to both sides, the case proceeds to trial. At trial, both sides present their evidence, witness testimony, and legal arguments to a judge or jury. The judge or jury then decides whether medical negligence occurred, whether it caused the Erb's palsy, and if so, the amount of compensation to award.
Trials are less common than settlements in these types of cases, but they are a possibility if a fair agreement is not achieved through negotiation.
What Can Compensation from an Erb's Palsy Lawsuit Cover?
Making Life More Manageable for Your Child and Family
Compensation, often called "damages," is awarded for various categories of loss and expense. These include:
- Medical Expenses (Past and Future): This covers all medical care related to the Erb's palsy, including initial hospitalizations, surgeries, doctor visits, diagnostic tests, and medications. It also projects future medical needs.
- Therapy and Rehabilitation: Costs for ongoing physical therapy, occupational therapy, and any other rehabilitative services needed to improve function and quality of life.
- Assistive Devices & Adaptive Equipment: Funding for items like braces, splints, specially designed tools for daily living, and other equipment to help your child adapt.
- Home Modifications: If the injury results in significant disability, funds often cover modifications to your home (e.g., ramps, accessible bathrooms) to accommodate your child's needs.
- Special Education Needs: If Erb's palsy affects your child's ability to learn in a standard classroom setting, compensation covers tutoring or specialized educational programs.
- Lost Wages (Parental): If one parent has had to stop working or reduce their hours to provide care for the child due to the injury, compensation for these lost earnings is often included.
- Pain and Suffering: This acknowledges the physical pain, emotional distress, and loss of enjoyment of life that your child experiences due to the injury.
- Loss of Future Earning Capacity: If Erb's palsy is likely to limit your child's ability to work and earn an income as an adult, compensation is sought for this projected loss.
How Much Are We Talking?
There's no single, standard answer to how much compensation is awarded in an Erb's palsy lawsuit. The amount varies significantly from case to case based on several critical factors:
- The severity of your child's specific injury and the degree of permanent impairment.
- The projected lifetime cost of care, including all medical treatments, therapies, and adaptive needs.
- The strength of the evidence demonstrating medical negligence and its direct link to the injury.
- The specific laws in your state, as some states have caps or limits on certain types of damages in medical malpractice cases.
Don't Wait Too Long: The Clock is Ticking (Statutes of Limitations)
What is a Statute of Limitations?
A statute of limitations is a law that sets a firm time limit on how long you have to initiate legal proceedings after an injury or harmful event has occurred. If you fail to file your lawsuit within this prescribed period, you generally lose your right to sue, regardless of how strong or valid your case was.
How Long Do You Have? It Depends on Your State.
The specific time limit for filing a medical malpractice lawsuit, including those for birth injuries like Erb's palsy, varies from state to state. There is no single national deadline.
Many states provide around two to three years from the date the injury was discovered, or reasonably should have been discovered. However, in some jurisdictions, the timeframe is shorter, sometimes even just one year from the date of the injury.
The bottom line: If you suspect that medical negligence caused your child's Erb's palsy, speak with a lawyer as soon as possible. An attorney familiar with birth injury claims in your state will explain the specific statute of limitations that applies to your situation and ensure that your right to pursue a claim is protected. Waiting too long means you lose your opportunity for legal recourse.
FAQ for What is an Erb's palsy lawsuit?
Q1: Will I have to pay a lawyer upfront to take my Erb's palsy case?
A: Many birth injury lawyers work on a contingency fee basis. This arrangement means the lawyer's fees are contingent upon them winning your case or securing a settlement for you. If they are successful, their fee is a percentage of the financial recovery. If they do not win, you usually do not owe them attorney fees. Always discuss the fee arrangement clearly with any lawyer before hiring them.
Q2: What if I'm not sure if it was medical negligence?
A: That's perfectly okay, and quite common. It's not your job to be a medical or legal professional, or to determine negligence on your own. If something about your child's birth and subsequent Erb's palsy diagnosis feels wrong, or if you have unanswered questions, consult with a lawyer. They will arrange for a detailed medical review of your case to assess whether the standard of care was breached.
Q3: If we file a lawsuit, does that mean the doctor will lose their license?
A: A medical malpractice lawsuit is a civil action primarily seeking monetary compensation for the damages and harm caused by negligence. It is separate from disciplinary actions by state medical boards. While a pattern of negligence claims or a particularly egregious finding in a malpractice case can trigger a review by the medical board, a single lawsuit itself doesn't automatically result in a doctor losing their license. The medical board has its own investigation and disciplinary processes.
Q4: Will my child have to testify in court?
A: It is highly unlikely that a young child with Erb's palsy will be required to testify in court. The case is typically built upon medical records, the testimony of medical experts, and the accounts provided by the parents or guardians. The legal system is generally sensitive to the well-being of children in such situations.
Q5: What's the difference between Erb's palsy and cerebral palsy?
A: While both Erb's palsy and cerebral palsy are often birth injuries, they affect different parts of the body and stem from different types of damage. Erb's palsy is a nerve injury specifically affecting the brachial plexus nerves, which control movement and sensation in the arm and shoulder. Cerebral palsy is a broader term for a group of disorders that affect movement, muscle tone, or posture, and it is caused by damage to the developing brain, which occurs before, during, or shortly after birth.
Secure Your Child's Future
For a straightforward, no-obligation conversation about your specific situation and to learn more about your legal rights, please call (888) 894-9067.
Cerebral Palsy Lawyer Alliance is here to listen and connect you with a birth injury lawyer in our network who will assess your case and clearly explain your options.