During labor and delivery, parents often assume (and hope) their newborn will enter the world loud and moving healthily in every direction.
Erb’s palsy can be particularly frightening because the newborn’s arm often hangs limply from their shoulder. Fortunately, most children born with Erb’s palsy fully recover.
In some cases, Erb’s palsy is unavoidable. In other cases, Erb’s palsy is the result of medical malpractice. If your child was born with Erb’s palsy, you may be entitled to financial compensation.
Erb’s palsy is a type of brachial plexus injury (BPI) that causes arm weakness and lack of motion.
More specifically, Erb’s palsy occurs when certain nerves of the brachial plexus (the nerves between the neck and shoulders) are stretched, compressed, torn, or otherwise injured. The condition is named for Wilhelm Erb, the doctor who first described the condition.
Symptoms of Erb’s palsy include:
Erb’s palsy is one of the most common neurological birth injuries, impacting roughly 2 of every 1,000 newborns.
Fortunately, the vast majority of newborns (80-96%) fully recover from Erb’s palsy in the first few months. For newborns who don’t recover by 5 or 6 months, surgery can generally improve the outcome. Surgery usually takes 1 of 2 forms:
It’s very rare for a child to be left with a significant disability as a result of Erb’s palsy.
Erb’s palsy in newborns usually occurs during a difficult delivery. For example, the newborn’s shoulders may get wedged within the birth canal, requiring some force to pull the baby from the birth canal. Erb’s palsy is commonly associated with:
When a newborn has Erb’s palsy, it’s often assumed that poor obstetrical technique is to blame. However, healthcare professionals are not liable for every birth injury that occurs. Some birth injuries are necessary to avoid greater harm. For example, a doctor may have to use extra force to remove a newborn from the birth canal in order to prevent the newborn from suffocating.
What’s more, there is some evidence that Erb’s palsy can occur in utero before delivery.
In order to establish a medical malpractice claim based on Erb’s palsy, you need to prove that:
In Erb’s palsy cases, the main focus of the lawsuit is generally on what the healthcare professional should have done in a specific set of circumstances. Lawyers for the plaintiff will attempt to persuade the judge or jury that the healthcare professional acted reasonably, while lawyers for the defendant will attempt to persuade the judge or jury that the healthcare professional acted unreasonably. These arguments are generally made (and in certain states are required to be made) by presenting testimony from experts in the field.
Every state has a statute of limitations that limits the amount of time a plaintiff can file a lawsuit before the lawsuit is forever barred. The purpose of the statute of limitations is to prevent plaintiffs from threatening defendants with litigation indefinitely and to ensure that relevant evidence is available.
The statute of limitations for medical malpractice claims varies depending on the state (usually from 1-6 years). However, in most cases, the clock won’t start ticking until the newborn turns 18. Nevertheless, it’s a good idea to talk to an attorney as soon as possible, as crucial evidence can become unavailable (witnesses can forget things, move, or die, etc.) if you wait too long.
Persistent Erb’s palsy can affect a child’s quality of life and self-esteem. The child may not be able to participate in certain sports, and day-to-day activities (such as buttoning a shirt) may be impacted.
When a parent files an Erb’s palsy lawsuit on behalf of their injured newborn, the damages recovered belong to the newborn and are generally placed in a court-ordered trust. That way, the court can ensure the money is spent on the newborn.
A newborn in an Erb’s palsy case can generally recover the following damages:
Erb’s palsy malpractice cases can be complicated. These cases often involve multiple defendants (doctors, nurses, hospitals, insurance companies, etc.) and typically require expert testimony.