Can I file a lawsuit if my child is born with Erb’s palsy?
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.
What is Erb’s palsy?
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:
- Weakness in the arm
- Loss of feeling in the arm
- Partial or total paralysis of the arm
How common is Erb’s palsy?
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:
- Nerve graft. Depending upon the nerve injury, it may be possible to repair a rupture by "splicing" a donor nerve graft from another nerve of the child.
- Nerve transfer. In some cases, it may be possible to restore some function in the arm by using a nerve from another muscle as a donor.
It’s very rare for a child to be left with a significant disability as a result of Erb’s palsy.
What causes 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:
- High birth weight
- Breech presentation
- Prolonged labor
Can you sue for medical malpractice if your baby develops Erb’s palsy?
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:
- Your healthcare provider failed to exercise the degree of care and skill expected of a reasonable healthcare provider in the same profession, and
- The failure was the cause of your newborn’s injury.
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.
After Dr. Tomeu left Virginia, he practiced in New Zealand for a year. While in New Zealand, a coroner found him partially responsible for a baby's death. After being relieved of his duties in New Zealand, the practitioner moved to North Carolina where he practiced for several years.
How long do you have to file an Erb’s palsy lawsuit?
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.
What damages can you recover in an Erb’s palsy case?
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:
- Medical expenses. Medical expenses include the immediate expenses incurred to treat the injury, but also the costs of any future medical care that the child will need because of the injury.
- Lost wages. If the injury is severe enough that it will impact the child’s ability to work in the future, the child can receive compensation for lost wages.
- Pain and suffering and mental anguish. Though hard to put a price tag on, the child can recover damages for the pain and suffering and the mental anguish associated with the injury.
How to find a birth injury attorney
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.
You can use our free online directory to locate an experienced medical malpractice attorney who specializes in these types of cases. Most initial consultations with attorneys are free.
See our guide Choosing a personal injury attorney.