Erb’s Palsy Birth Injury Lawsuits in Maryland

Erb’s palsy (or Klumpke’s Palsy) is a type of birth-injury resulting from damage to the upper brachial plexus nerves in a baby’s upper arm and neck area. This is a traumatic process involving mostly C5-C6 and sometimes C7 of the brachial plexus, the network of nerves that traverse the axilla from the cord to the arm. The brachial plexus nerves facilitate feeling and control movement through the arms down to the fingers. Babies with Erb’s palsy have some level of paralysis in their arm and hand due to damage to these nerves. Often the baby will be unable to move the affected arm and shoulder but may have movement in the fingers and hands. The arm will be noticeably limp on a baby with Erb’s palsy.

Shoulder dystocia is when after the delivery of the head, the anterior shoulder of the infant gets stuck requiring the OB or midwife to make manipulations to deliver the child. Shoulder dystocia occurs in approximately 2% of births. Erb’s palsy is the paralysis of the arm that results from should dystocia that is poorly managed. These conditions typically travel together.

As explained above, Erb’s palsy results from damage (4 different levels) to the upper brachial plexus nerves in the shoulder/neck area of a baby. The damage to the nerves occurs in the birth canal during difficult labor. There are several different labor and delivery situations which can result in nerve damage and cause Erb’s palsy.

The obstetric complication that most often leads to Erb’s palsy is shoulder dystocia. Shoulder dystocia is a condition where the baby comes through the birth canal at an awkward angle and a shoulder becomes stuck on the mother’s pelvis. To overcome this complication various maneuvers are employed and excessive twisting and/or lateral force often damages the upper nerves resulting in Erb’s palsy. Face-first delivery (cephalic presentation) and breech delivery are similar situations where obstetric maneuvers used to facilitate delivery can result in Erb’s palsy.

The long-term prognosis and treatment options for Erb’s palsy depend on how badly the baby’s nerves are damaged. If the nerve damage is limited the Erb’s palsy will likely resolve on its own with minimal treatment. However, if the nerve damage is more severe the Erb’s palsy may result in some degree of permanent paralysis of the arm.

Although Erb’s palsy is an injury that occurs during childbirth, that does not mean you will know right away if your baby has the condition. Sometimes Erb’s palsy is evident right away but in some cases, it may not be apparent until several days or weeks after delivery. The signs of Erb’s palsy eventually become easy to identify:

• Limp arm – may appear to be bent at the elbow
• Unable to grip with one hand
• Complete or partial paralysis of the arm
• Numbness in arm

Treatment for Erb’s palsy

Once Erb’s palsy is diagnosed treatment typically begins with physical therapy. Physical therapy usually involves target massage and movement techniques. Sometimes the physical therapy will be augmented with botox injections and/or electrotherapy.

If physical therapy treatment fails to resolve the condition there are a number of surgical treatment options available. Ruptured nerve fibers cannot be stitched back together so surgical treatment involves reconstruction of the damaged nerve. This means nerve tissue is grafted from somewhere else in the baby’s body and surgically implanted. This implanted nerve tissue serves as a framework for new nerve tissue to grow around.

Malpractice Claims for Erb’s palsy

A large percentage of Erb’s palsy injuries are the result of preventable medical errors during delivery – excessive force, lack of skill, improper delivery technique, and poor communication by the delivery team. You have to be careful looking at the records. OBs often describe the traction as “gentile” no matter how much force was used.

When a mistake occurs, the parents of the injury baby are entitled to compensation. Below is a summary of some recent malpractice settlements and verdicts for Erb’s palsy:

• S.G., Pro Ami v. Garden City Obstetrics and Gynecology, P.C. (2020): A newborn girl suffered nerve root avulsion. She sustained right Erb’s palsy and Klumpke’s palsy. The girl was left with cosmetic deformities and emotional distress. Her mother alleged negligence against the OB/GYN practice. She claimed its staff improperly performed a vacuum-assisted vaginal delivery, used excessive traction, failed to add
  ress shoulder dystocia, and failed to perform a C-section. This case settled for $3.04 million.
• Cudney v. United States (2020): A newborn boy suffered right Erb’s palsy at a federally funded hospital. He underwent multiple procedures. The boy was left with limited right arm use. His mother alleged negligence against the federal government. They claimed the hospital staff failed to properly address shoulder dystocia, address macrosomia, and perform a C-section. The mother received a $956,504 verdict.
• A.H., Pro Ami v. Montefiore Medical Center (2020): A newborn girl suffered a brachial plexus injury. She sustained Erb’s palsy. The girl underwent a capsular release and tendon transfer. Her mother alleged negligence against the hospital. She claimed its staff improperly performed the delivery. This case settled for $1.13 million.
• D.C., Pro Ami v. Lipari (2020): A newborn girl sustained a left brachial plexus injury. She developed Erb’s palsy. The girl’s father alleged negligence against the physician. He claimed he improperly performed the delivery. This case settled for $365,000.
• Plaintiff v Erhart (2019): New York case involving a baby boy who suffered injury to his brachial plexus nerves during childbirth and was diagnosed with Erb’s Palsy and developmental delays. Defendant doctors were allegedly negligent in failing to diagnose fetal macrosomia in advance of delivery which would have prompted a preemptive C-section. Had defendants properly diagnosed macrosomia and delivered via C-section his injuries would not have occurred. Case settled for $850,000.
• Garcia v. Endres (2017): A child suffered paralysis in his arm after it becomes stuck in the birth canal. The plaintiffs alleged the obstetrician pulled with too much force when trying to dislodge the baby’s shoulder, tearing the brachial nerves in his arm. The case settled for $1.2 million, must of which was put in a special needs trust so that child can use that money for care for the rest of his life.
• McAllister v. Women & Babies Hosp. of Lancaster (2017): In this Pennsylvania case the baby was delivered with a fractured arm and nerve damage resulting in Erb’s palsy. The doctor was allegedly negligent in using forceps and excessive force in response to shoulder dystocia during delivery. Malpractice claims were settled for $1,000,000.
• Gurzakovic v. Bellevue (2017): New York case involving a baby girl who suffered severe brain damage, and Erb’s palsy. The claim was failure to obtain informed consent concerning vaginal delivery, lack of Cesarean section, labor induction, and shoulder dystocia maneuvers. If the sole issue is informed consent and not negligence in a case like this, the hill is a high one for the plaintiffs. This claim settled for an incredibly meager $50,000.
• Bussey v. Mother Bachman Maternity Center (2017): another Pennsylvania case alleging excessive force and torsion used during delivery caused Erb’s palsy. The case was settled for $325,000.
• L.J v. Lexington Health Services District (2017): a newborn girl suffered shoulder dystocia/disfigurement to her right shoulder, arm and hand after a vaginal delivery. The lawsuit alleged the doctors negligently failed to see the signs of shoulder dystocia and then used using excessive force and traction during delivery. The case settled for only $450,000.

Obviously, you cannot use these verdicts to predict the value of your case. But they do give you some idea of the settlement value of these claims. In Maryland, there is a cap on noneconomic damages of $800,000 (in 2018). So the key to the value of an Erb’s palsy case in Maryland is how much money there is past and future economic loss.

Defenses to Erb’s Palsy Cases

Not many reasonable people disagree that the repeated application of traction and rotation force can cause Erb’s palsy. Still, there is not an Erb’s palsy birth injury case where the defense attorneys roll over and play dead. Insurance companies and hospitals will fight virtually every one of these claims, no matter how obvious the negligence may be. Defense lawyers argue that there is no evidence that the occurrence of Erb’s palsy is an indication of a deviation from the standard of care. They will tell the jury that the occurrence of Erb’s palsy does not indicate that excessive force was used by the delivering physician.

There are three common defenses to Erb’s palsy Cases.

1. Shoulder dystocia is not reliably predictive Erb’s palsy often occurs in the absence of recognized shoulder dystocia. Defense lawyers point to some studies that suggest that 50% of cases of brachial plexus palsies involve uncomplicated vaginal deliveries. In support of this argument, they further contend that there has been very little reduction in the incidence of Erb’s palsy despite a dramatic increase in the numbers of cesarean deliveries.
2. Brachial plexus palsy can also occur in the posterior arm of infants whose anterior arm was impacted behind the symphysis pubis. Because this can occur after a C-section, defense lawyers and their experts argue this as evidence that the injury occurs in the absence of negligence and instead as the result of material labor forces. The defense to these cases often involves trying to find some way to indirectly blame the mother and this argument typifies this strategy.
3. Malpractice defense attorneys argue that studies do not show a statistical relationship between brachial plexus palsy, the experience of the obstetric provider, or the number and type of maneuvers used to alleviate shoulder dystocia.

There are fatal flaws in all of these arguments. One huge problem is that whether or not there was excessive lateral traction is defined in these studies by whether the doctor admits there was excessive traction. One defense expert goes as far as to say if the doctor says “I didn’t exert excessive lateral traction on the fetal head” then it must be there is another cause for the Erb’s palsy. Incredibly, he testified that the only exception to this rule would be if the baby was decapitated. Let the insanity of that sink in for a second.

In recent years, defense lawyers have pushed this idea that the “natural forces of labor” are what causes the baby’s injuries. As proof, they argue that many children are injured without excessive traction. The problem is that this theory depends on obstetricians documenting excessive traction and pulling on the baby’s head. So the fact that doctors do not confess to malpractice in the medical records is used in these studies to say, “Look at all of these injuries without excessive traction.” It is just plain silly.

In spite of what defense lawyers pretend, when there is a serious injury these cases usually settle before a trial. It is hard to dispute that the application of excessive lateral traction on the fetal head and neck during delivery can cause these injuries. But victim’s need a birth injury lawyer who can make the appropriate arguments and find the right experts to support the claim.

Contact Miller & Zois About Erb’s Palsy Malpractice

If you or someone you know has a child with Erb’s palsy and believe you may be entitled to compensation, call us at 1.800.553.8082 or submit a request for a free consultation.