ERB’S PALSY IS LIKELY THE RESULT OF MALPRACTICE DURING THE DELIVERY OF AN INFANT

One of the types of cases litigated with some frequency in New York courts involves infants born with what is referred to as Erb’s Palsy.  Erb’s Palsy is the term that describes the symptoms involving limitation or loss of use of an infant’s arm resulting from the stretching or tearing of the nerves of the brachial plexus.  The brachial plexus is a bundle of nerves that run from the cervical spine (neck) to the arm and enable the arm to function.

When an infant is born with this condition, and if it is determined to be a permanent condition, the inevitable questions raised are “how did it occur, what causes Erb’s Palsy?” and “was this the

result of malpractice?”    These questions have been litigated in malpractice cases, including a case I litigated in Orange County, New York where I obtained a substantial Jury verdict a number of years ago.

In that case, we were able to establish that during delivery the infant’s shoulders had become stuck because the shoulders did not fit through the birth canal.   This condition is referred to as shoulder dystocia.  Shoulder dystocia is a recognized emergency during childbirth.

There are recognized procedures which should be employed when shoulder dystocia is encountered.  If, however, the physician or nurse/midwife performing the delivery pulls or twists on the infant’s head when shoulder dystocia is encountered, such pressure can result in a permanent brachial plexus injury referred to as ‘Erb’s Palsy’.

It is recognized that it is a departure from accepted standards of care to pull or twist on the infant’s head when shoulder dystocia is encountered.  Instead, the recognized maneuvers should be employed including, applying suprapubic pressure (pushing in a downward motion on the mother’s abdomen in an effort to aid the delivery), a corkscrew maneuver where the attending physician or nurse/midwife inserts their hands into the mother’s vagina and attempts to change the infant’s position so that the shoulders can be delivered at a different angle and there are other recognized procedures.

In many of these cases, it is difficult to establish that shoulder dystocia, the shoulders becoming stuck, actually occurred because the medical records are silent on this issue. In those cases, it is more difficult for the attorney representing the injured infant to prevail.

In the case I tried in Orange County, New York, there was no question that shoulder dystocia was encountered as it was documented in the records.  Moreover, in the case I tried, although the type-written delivery note was silent as to the appropriate procedures being performed, a hand-written addendum, added after the delivery note had been typed, described utilizing those appropriate procedures.  I was able to effectively cross-examine the nurse/midwife on that issue and in particular, that had the procedures really been performed, they would have been in the type-written delivery note and not added later in a hand-written addendum.

Defendants in these lawsuits have recently begun to argue that the Erb’s Palsy occurred due to the natural “forces of labor”, i.e., that natural forces on the infant in the birth canal can cause this injury.  Some New York courts have recently found that theory to be scientifically unreliable and have refused to permit the defendants to present such theory to the jury.

In conclusion, I would state that if a child is born with Erb’s Palsy, and the condition is determined to be permanent, the child’s parents should consult with a qualified medical malpractice attorney to determine whether a viable lawsuit can be brought.   These cases can be successfully prosecuted and substantial compensation obtained for the injured infant.