Erb’s Palsy Lawsuit
In the excitement of pregnancy, few parents anticipate that their children will suffer painful birth injuries. Unfortunately, experts at the American Academy of Orthopaedic Surgeons estimate that one or two of every 1,000 newborns experience Erb’s palsy, which involves loss of motion and weakness of the arms. While some infants recover during their first few months of life, others go on to suffer lasting damage. Meanwhile, their parents struggle to cover the cost of physical therapy or surgery.
Erb’s palsy often occurs due to negligence during childbirth. In such cases, the parent’s best option may involve filing an Erb’s palsy lawsuit. Legal action can procure significant damages while holding problematic medical professionals accountable for their failure to uphold a proper standard of care.
What Is Erb’s Palsy?
Sometimes referred to as Erb–Duchenne palsy or brachial plexus birth palsy, Erb’s palsy occurs when an injury to nerves in the upper arm leads to paralysis. Typically, the condition results from injury during childbirth, especially if excessive force is applied.
Common symptoms of Erb’s palsy include:
- Inability to move the newborn’s arms or shoulders. Limited mobility is common for newborns, but most are at least able to move their arms.
- Weak reflexes of the affected arm or no reflexes at all.
- The newborn positions his or her arm so it’s bent toward the body. This unusual position may feel more comfortable for the child but looks unnatural to parents and medical staff.
- Intense pain in the arm, shoulder, or neck. This quickly becomes evident if the child cries when the affected arm or shoulder is touched. In other cases, however, newborns may lose all sensation in the affected arm.
What Was the Cause of My Child’s Erb’s Palsy?
A variety of factors can lead to Erb’s palsy. Sadly, negligence typically plays a huge role in the condition. In many cases, Erb’s palsy occurs during difficult deliveries in which the child is pushed and pulled abnormally. The manner of pushing or pulling may differ based on the infant’s positioning at the time of birth, but it’s nearly always damaging if undertaken with excessive force.
Often, Erb’s palsy occurs if the infant’s head emerges from the cervix but the body is stuck. Eager to move the process along, medical professionals may use forceps or other equipment. This can prompt lasting damage.
Erb’s palsy often results from the failure to proceed with a Cesarean section in sufficient time. Sometimes, infants are simply too large (or their mother’s birth canal is too small) to make a safe vaginal delivery possible. Physicians are typically able to diagnose cephalo-pelvic disproportion (a condition in which the child is too large for the birth canal) during the last few weeks of pregnancy. Failure to diagnose or to plan accordingly could increase the risk of brachial plexus issues or other injuries.
In addition to observing and accounting for cephalo-pelvic disproportion, physicians should prepare for breech pregnancies prior to childbirth. Erb’s palsy often results from breech (feet-first) deliveries, which, if discovered too late, may leave health care workers no choice but to pull infants by the feet or legs. This places unnatural stress on the brachial plexus.
While the Caesarean section is typically deemed a preventative measure against Erb’s palsy, the condition can occasionally occur due to C-section related lateral traction.
Could My Child’s Erb’s Palsy Have Been Prevented?
Because negligence regularly plays a role in the development of Erb’s palsy, the condition is often completely preventable. While certain risk factors can increase the potential for the condition, medical staff should be able to identify these risks well in advance — and plan accordingly. For example, health care professionals should plan carefully for delivery of breech newborns, as they are especially prone to Erb’s palsy.
During delivery, Erb’s palsy is best prevented through the use of proper birthing techniques. Medical professionals should not push or pull aggressively on infants, even if they are born breech. In such cases, witnesses can provide valuable insight into whether the condition could have been prevented.
Why File an Erb’s Palsy Lawsuit?
Erb’s palsy prompts suffering not only for diagnosed children but also for their parents and other family members. Newborns face considerable pain due to nerve damage. This pain may eventually diminish, but a limited range of motion can often prove a life-long ordeal. Affected children may struggle to lift their hands over their head or perform arm motions gracefully. As a result, they may face issues in school, extracurricular activities, and general socializing. Imagine growing up without being able to play Little League baseball, swim comfortably at the local pool, or even wield a pair of scissors for kindergarten crafts. This is daily life for children with Erb’s palsy. A lawsuit can address emotional suffering related to these limitations.
In addition to accounting for emotional distress, Erb’s palsy lawsuits help parents cover the often insurmountable cost of medical care. Children with Erb’s palsy may spend extensive time in physical therapy or could be forced to undergo surgery. These costs can add up quickly for parents. A successful lawsuit can relieve struggling families of hundreds of thousands in medical bills.
The following are just a few of the many other reasons why parents of children with Erb’s palsy might file a lawsuit:
- To hold negligent medical professionals or facilities accountable.
- To spread the word about negligence-based Erb’s palsy, and hopefully, prevent future cases.
- To deliver a sense of justice, which may lead to greater peace of mind for angry parents.
- To secure much-needed compensation not only for existing medical bills but also for future rehabilitation. This helps parents take a more proactive approach to long-term care.
Is an Erb’s Palsy Lawsuit Worth It?
As the parent of a child with Erb’s palsy, you’re eager to obtain compensation but worried about the legal process. You’re certainly not alone. It’s never easy to file a lawsuit, but many parents previously in your position would argue that it’s worth the effort — especially if you’re currently struggling to cover medical bills. If concluded successfully, your lawsuit could lead to significant compensation. Compensatory and punitive damages could allow you to obtain better and more consistent care for your child without crumbling under the burden of medical debt.
While you may picture a courtroom fiasco as a natural result of your legal efforts, the process may be less stressful than you anticipate. Many of Erb’s palsy lawsuits are successfully settled out of court. If you work closely with a skilled attorney to achieve a prompt settlement, you can obtain the damages you deserve while avoiding much of the stress of drawn-out courtroom proceedings.
What to Expect in an Erb’s Palsy Lawsuit
The legal process begins with an initial consultation. Your attorney can help you determine whether you have a viable case that can be filed within your state’s statute of limitations. In addition to asking several specific questions about your child’s condition, your attorney will scour medical records for additional evidence.
In some cases, a settlement may be reached before the case is even filed. More often, however, doctors’ insurance companies prefer to conduct pre-trial investigations. Before such investigations occur, your lawyer may be asked to submit a certificate of merit. This ensures that you file a valid malpractice case.
The discovery process plays a critical role in Erb’s palsy cases. Discovery involves not only reviewing medical documents but also sending interrogatories or requests for disclosure. Some lawyers may conduct depositions for relevant witnesses.
Many medical malpractice trials involve feedback from expert witnesses who, ideally, share the same area of expertise as the allegedly negligent professional. In an Erb’s palsy case, expert witnesses often work in obstetrics, gynecology, or neonatal care.
Both sides may begin to discuss settlement as the discovery process draws to a close. Mediation or arbitration sometimes prove necessary. If settlement proceedings fall through, the case may move to court. At trial, the plaintiff and the defendant’s representatives present evidence. Expert witnesses may be called upon to testify before the jury, which ultimately decides if the accused health care professional acted negligently.
When Should I Start My Erb’s Palsy Lawsuit?
As in most medical malpractice cases, early is typically better for Erb’s palsy lawsuits — but only up to a point. Start too soon and you may lack medical evidence of a breach of duty. However, it is imperative that you remain within your state’s statute of limitations while still gathering sufficient evidence for a successful case.
In some states, you may face the extra hurdle of obtaining an affidavit from an approved expert witness. When in doubt, avoid filing if you’ve yet to find evidence that the allegedly negligent individual owed you a duty of care or breached it.
Duty of Care
All medical professionals hold a duty of care. This term refers to the legal obligation to act in each patient’s best interest. Unfortunately, this concept can be frustratingly murky in a healthcare context. In obstetrics, a duty of care extends to two individuals: the mother and her unborn child. Medical professionals are obliged to act in the best interests of both parties. This means providing proper neonatal care and responding in a timely manner to urgent issues. In emergency situations, healthcare workers may be forced to make difficult decisions in the interest of protecting the mother’s health. However, proper neonatal care can often prevent these tough choices.
Breach of the Duty of Care
Breach of duty of care occurs when a health care worker fails to uphold his or her obligations to provide competent and attentive medical care. With Erb’s palsy cases, this could mean failing to respond with appropriate haste to evidence of infant distress or taking too long to proceed with a Caesarian section. It could also mean failure to properly monitor the pregnancy or the newborn’s condition following delivery.
Breach of Duty of Care Caused Erb’s Palsy
Often, breaches of duty of care are responsible for Erb’s palsy. For example, an obstetrician responsible for handling your delivery may have demonstrated a breach of a duty of care by failing to order a C-section when clearly necessary.
In Erb’s palsy cases, plaintiffs must successfully prove that:
- The responsible party owed the harmed infant a duty of care.
- That a breach of this duty of care resulted in the child’s brachial plexus injury.
Failure to prove the defendant’s breach of a duty of care — or to make the connection between that breach and the ultimate injury — almost guarantees losing your medical malpractice case, especially if it goes to trial.
Statute of Limitations
As with all medical malpractice cases, plaintiffs filing Erb’s palsy lawsuits must abide by the statute of limitations. This term refers to the date by which plaintiffs must file malpractice cases. Miss the statute of limitations, and you might lose your shot at obtaining the compensation you deserve.
The statute of limitations for Erb’s palsy cases can vary significantly from one state to the next. In some regions, cases must be filed within one year of the negligence-based incident. In other areas, parents are allowed to file lawsuits over five years after their child’s injury.
Factors that may influence the statute of limitations in your state include:
- The presence of a statute of repose — the date after which no legal action can be taken, regardless of the date of discovery.
- The date on which courts believe the condition should have reasonably discovered.
- The ability of the affected child to file a medical malpractice case upon reaching age 18 (not common).
- Some states require plaintiffs to submit affidavits from expert witnesses prior to the statute of limitations.
How Long and Time-Consuming Are Erb’s Palsy Lawsuits?
Timelines can vary considerably for Erb’s palsy lawsuits. Settling out of court can significantly shorten the process. Whether settled or brought to trial, it takes time to gather evidence and build a case.
In general, complicated cases take longer to resolve — as expected. Cases may also take longer to complete if there are several expert witnesses, if novel legal issues are addressed, or if multiple parties are deemed responsible.
If your case does not end with a settlement, it could take anywhere between two and four years to resolve. A study published in the New England Journal of Medicine identified an average period of five years between a health care injury occurring and being resolved in a related medical malpractice case. This average does not specifically target Erb’s palsy cases, however. Additionally, the figure may be skewed by a select few malpractice cases that take years to initiate and even longer to conclude.
What Kind of Compensation Will I Receive?
Two primary types of compensation can arise from Erb’s palsy lawsuits: compensatory and punitive damages. Compensatory damages help victims cover the cost of medical care. Depending on the severity of the injury, compensatory damages may cover physical therapy or surgery.
Compensatory damages also account for emotional distress. Children with Erb’s palsy suffer significant emotional pain, especially as they grow up and are unable to make full use of their limbs. Their parents experience acute distress immediately following childbirth and in years to come — particularly while observing their child’s physical and emotional suffering.
Punitive damages aim to punish those deemed responsible for the condition. Often, punitive damages accompany cases involving gross negligence or malicious intent. While malicious intent is not common for birth injuries such as Erb’s palsy, medical professionals regularly commit gross negligence. Ideally, punitive damages will have a preventative effect; as a result, other health care facilities may take extra steps to prevent Erb’s palsy (and accompanying lawsuits) in the future.
How Do I Receive Settlement or Trial Compensation?
Compensation can take many forms. Options may differ based on requirements in your home state and whether your case is resolved through settlement or trial. Personal preferences may also come into play. Often, parents of children with Erb’s palsy are compensated via lump sum payments, which grant them the freedom to tackle mounting medical bills and other financial concerns as they see fit.
Many Erb’s palsy claims end with structured settlements, in which damages are paid as annuities. Structured settlements may impart tax benefits while also reducing the temptation to use settlement money for extravagant purchases. Occasionally, Erb’s palsy cases end with a combination of these two main approaches: a lump sum payment and a structured settlement.
Get Help Now
Do you suspect that your child suffered a brachial plexus injury due to negligence in a healthcare facility? It’s time to take action. Reach out to learn how you can obtain assistance from the Cerebral Palsy Group.