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Understanding Erb’s Palsy Lawsuits: Key Factors and Legal Considerations



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Doctors, nurses, and other medical care providers are expected to act quickly and appropriately in medical emergencies. This duty also applies to complications that arise during a patient’s pregnancy or childbirth. But it’s not always followed, as different forms of preventable birth injuries happen every year. 

Erb’s palsy, also known as Erb-Duchenne paralysis, is one of the most common types of birth injury cases. It is estimated to occur at rates between 0.9 to 2.6 per 1000 live births. Moreover, this condition causes arm weakness, affecting 0.4 to 5 in 10,000 births.

Dealing with a birth injury like Erb’s palsy can be overwhelming for affected families. On top of the emotional burdens are the high costs of a lifetime of treatment and therapy. 

Suppose medical professionals failed to meet the standard of care, causing your child to develop an Erb’s palsy injury. You can demand compensation for the birth injury sustained and resulting losses. You can pursue compensation by settling with the insurance company or filing an Erb’s palsy lawsuit against the liable medical professional. 

Settlements and verdicts for Erb’s palsy cases can differ based on various factors, including location, the injury’s severity, and the degree of malpractice. As a point of reference, a Delaware jury awarded Monica Broughton $3 million as compensation for her son Erb’s palsy.

With a birth injury lawyer’s assistance, you can get the highest compensation for your child Erb’s palsy case. The Malpractice Center also has legal resources to help victims and affected families with the aftermath of Erb’s palsy and other birth injuries.

Key Takeaways
  • Medical malpractice involves failing to act within the standard of care, resulting in the patient’s injury.
  • A medical malpractice attorney can determine the responsible party and gather evidence, such as medical records and expert testimonies.
  • Factors such as trespassing, provocation, assumption of risk, and comparative negligence influence liability in a dog attack case.

Understanding Erb’s Palsy

Erb’s palsy is a neurological birth injury affecting the brachial plexus. It’s often referred to as brachial plexus palsy. The brachial plexus is basically a network of nerves primarily responsible for facilitating movement and sensory signals to the upper extremity, such as the shoulder, arm, and hands. 

An injury to the brachial plexus can lead to permanent weakness or disability. But depending on the extent of nerve damage, some children with brachial plexus injury can regain most of their normal function with proper treatment. Others may be able to recover spontaneously. 

The causes, symptoms, and treatment options for brachial plexus injuries can differ based on the type of injury and the affected nerves. Below, we’ll explore the mechanism and manifestations of Erb’s palsy and how to diagnose and treat it. 

Causes and symptoms

Palsy is another term referring to partial or complete loss of muscle function or paralysis. But unlike in cerebral palsy, the damage in Erb’s palsy doesn’t occur in the brain. Instead, injury to the neck nerves is the primary cause of Erb’s palsy, causing temporary or permanent paralysis of the arm. 

It may happen due to physical injury during delivery or traumatic force downward, which affects the upper arm and shoulder. This excessive force damages the brachial plexus nerves. 

The following are specific situations that commonly cause brachial plexus injuries and give rise to Erb’s palsy: 

  • Difficult delivery: A brachial plexus injury can occur when the newborn’s neck is stretched to one side during a difficult delivery. It frequently happens when a doctor applies excessive force to pull the baby’s head from the mother’s birth canal. In some cases, shoulder dystocia may occur when the head is delivered, but the baby’s shoulder gets trapped in the birth canal. 
  • Breech position: A baby is a breech when their bottom is positioned to come out first during vaginal birth. Most often, the feet-first pull will cause the baby’s arms to stretch over its head. This can exert abnormal pressure on the arms and cause damage to the brachial plexus. 
  • Prolonged labor: When labor is not progressing after 20 or more hours of contractions, the doctor may use tools like forceps to assist mothers in delivering their babies vaginally. Improper use of birth assistance tools can put pressure on the baby’s arm and shoulder area, damaging the brachial plexus nerves. 

Various complications during labor and delivery can damage the brachial plexus and result in Erb’s palsy. Although some of them are impossible to predict, there are risk factors that may increase the chances of a complicated vaginal delivery and birth injuries like Erb’s palsy. 

Suppose the doctor ignored the risk factors and failed to take adequate measures that could prevent the development of your child’s Erb’s palsy. You may file a medical malpractice claim to seek financial compensation. But how do you recognize the symptoms of Erb’s palsy? 

Erb’s palsy symptoms may vary depending on the type and severity of the brachial plexus nerve injury. However, while manifestations are often recognizable at birth, the extent of nerve damage and constraints on your child’s movement may only be identifiable when they are between 3 to 6 months old. 

Nevertheless, consulting with a doctor is crucial if your child shows the following signs and symptoms of brachial plexus injury:

  • Paralysis of the shoulder, arm, and elbow
  • Numbness in the arm or hand
  • Unusual hand position
  • Reduced ability to grasp objects or only use one hand to grasp

Remember that every child’s range of impairments from birth injuries will be unique. But children with Erb’s palsy may suffer long-term consequences, such as:

  • Restricted range of motion
  • Significant discrepancies in limb length and size
  • Horner’s syndrome, or drooping eyelid on the side
  • Psychological issues 

These long-term complications can be emotionally and financially challenging for the victim and affected families. But with a better understanding of its potential causes, symptoms, and long-term effects, you can make more informed decisions for your child’s overall well-being. 

Diagnosis and treatment options

Prompt and proper diagnosis of Erb’s palsy is also essential to get treatment. A thorough physical examination assessing arm weakness will also be performed to determine whether your child has Erb’s palsy.  

Additionally, they will perform the following diagnostic tests to obtain an accurate diagnosis and provide the necessary treatment:

  • X-ray
  • Electromyography (EMG)
  • Nerve conduction studies
  • Magnetic resonance imaging (MRI)
  • Computerized tomography (CT) myelography

When it comes to treatment, most newborns with brachial plexus birth palsy tend to recover on their own. The nerves may take up to two years to grow and recover completely. Hence, expect the doctor to re-examine your child regularly to monitor the nerve’s healing progress. 

However, for those with more considerable nerve damage, the following treatment options may be necessary: 

  • Physical therapy
  • Hydrotherapy
  • Nerve graft or nerve transfer
  • Tendon transfer

Establishing Medical Malpractice

Many patients have suffered harm because of medical errors. Individuals injured by a doctor or hospital’s medical malpractice may be eligible for compensation. However, not all injuries the patient sustained involve medical negligence or malpractice of the doctor or other healthcare provider. 

Like other personal injury cases, you must prove several elements to bring a successful medical malpractice case. A lawyer may invoke the following elements of medical malpractice in establishing fault or negligence in Erb’s palsy lawsuits. 

Duty of care

The doctor or healthcare provider must have a legal duty toward you. This duty of care only applies when there’s a patient-doctor relationship, meaning the physician must have agreed to treat or provide you with their services. 

When the relationship between the patient and the doctor is established, the physician has a legal obligation to exercise the standard of care. The definition of standard care can vary among different jurisdictions. 

But generally, it refers to the level of care that a reasonable healthcare professional would do under the same circumstances. It also means they adhere to acceptable medical treatment to care for the patient under specific circumstances. 

Breach of duty

Establishing a breach of standard care is another vital element in a medical malpractice claim. You must demonstrate that the physician or health care provider did not abide by the profession’s standards when treating the patient. Some examples of breach of duty in medical settings may include:

  • Prescribing an incorrect medication or dosage
  • Failing to warn the patient of potential risks of treatment or a procedure
  • Failing to give an accurate diagnosis of a health condition
  • Making a mistake during a surgical procedure

Injury caused by the breach 

A breach of the standard of care has no legal bearing unless it results in a patient’s injury. To have a valid legal action for a medical practice case, you must prove that the healthcare professional’s violation of the standard of care caused the injury to the patient. 

Resulting damages

Damages are the final element of medical malpractice cases. These are the losses sustained due to the injury caused by medical malpractice. You cannot pursue legal action for medical negligence without proof of significant damages. 

Moreover, if the damages are not substantial, the cost of filing a case may be greater than the compensation you’re entitled to recover. The assistance of an Erb’s palsy attorney will be beneficial in determining your case’s potential damages and the best legal action to take. 


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Responsible parties

Liability for medical malpractice is often attached to medical doctors. But other healthcare professionals, such as nurses and anesthesiologists, can also be held legally responsible for Erb’s palsy.

For instance, you can hold a healthcare practitioner legally liable if your child developed an Erb’s palsy because of the following reasons:

  • Application of inappropriate force on the baby during delivery
  • Failure to perform a medically necessary C-section, mainly if the baby is unusually large
  • Failure to identify risk factors for shoulder dystocia and other birth complications 
  • Use of inappropriate recognized procedures and maneuvers

You can also hold hospitals, healthcare facilities, and pharmaceutical companies for patient harm due to medical malpractice. Here are a few situations where the hospital may bear liability for medical malpractice: 

  • Negligent hiring
  • Failure of hospital employees to follow doctor’s orders
  • Failure to keep accurate medical records

Suppose you suspect that your child suffered an Erb’s palsy because of the doctor or hospital’s negligence. An Erb’s palsy attorney can determine whether you have a viable medical malpractice case against the healthcare practitioner or facilities. 

Medical records and expert testimony

Medical records and expert testimonies are critical in establishing a medical malpractice case. Your medical records will likely contain the details of the birth as well as the procedures or maneuvers taken. It’s crucial evidence of the treatment and care you did or didn’t receive from the medical professional. So with medical records, you can demonstrate the standard of care provided. 

Testimonies from medical experts are equally crucial in establishing a breach of standard of care. The primary reason is that a jury of lay persons may not understand the intricacies of medical care. Medical experts can better explain how the healthcare professional didn’t meet the applicable standard of care. They can also help demonstrate the severity of your child’s injury. 

Legal Considerations in Erb’s Palsy Lawsuits

Parents or family members of children with Erb’s palsy can file a lawsuit against the healthcare professional or facility. But navigating the legal process for medical malpractice cases can be complex. Working with an experienced birth injury lawyer is the best way to take legal action for medical malpractice in Erb’s palsy cases.

Still, preparing yourself on what to expect in an Erb’s palsy lawsuit wouldn’t hurt. Let’s explore the types of damages you can recover and the processes involved in filing an Erb’s palsy malpractice case. 

Types of damages

Two types of damages are recoverable in an Erb’s palsy lawsuit: punitive and compensatory. 

Punitive damages primarily aim to punish the defendant and prevent other healthcare professionals from engaging in similar misconduct. But they’re only available in extremely rare cases. Moreover, they may require proving that a medical professional intentionally or deliberately caused you harm. 

On the other hand, compensatory damages are designed to compensate you for the injury or losses incurred due to medical negligence. These damages can be classified as either economic or non-economic damages. 

Economic damages refer to your financial losses. Medical malpractice cases involving birth injuries may include expenses for medical treatment, surgery, physical therapy, and lost income of parents or guardians due to missed work. Meanwhile, non-economic damages are intangible harm affecting the patient’s quality of life, such as emotional distress, pain, and suffering. 

It’s important to emphasize that many states cap damages on medical malpractice cases. These limitations may apply to the total amount of an award or only specific damages. 

For instance, Section 3333.2 of the California Civil Code set a $350,000 cap on medical practice cases for personal injury actions and $500,000 for cases involving wrongful death. Likewise, Section 11-1-60 of the Mississippi Code caps non-economic damages in medical malpractice actions at $500,000.

Medical records and expert testimonies are also valuable resources when assessing the proper damages in a medical malpractice case. Medical records include the diagnosis, treatment plans, surgical procedures, and any ongoing or future medical care required. Expert testimonies can also add credibility, enabling the jury or court to understand the complex medical aspects of your case. 

Negotiations and settlements

Not all Erb’s palsy lawsuits go to trial. In most cases, the defendant’s insurance company and attorney may prefer an out-of-court settlement. 

One reason is that resolving cases in court can be lengthy and complicated. Additionally, a trial outcome is unpredictable, whereas an Erb’s palsy settlement guarantees that the victim gets monetary compensation. 

Out-of-court settlements for Erb’s palsy happen through a series of negotiations. Lawyers for both parties will negotiate the compensation amount to resolve the case before it reaches trial. Careful planning and legal understanding of all the matters and evidence involved are essential when negotiating a fair Erb’s palsy settlement. 

An experienced birth injury lawyer can help improve your chance of obtaining the highest compensation for your Erb’s palsy case. They likely have the resources to support the negotiations and reach a mutually acceptable settlement. 

Trial process

In some medical malpractice cases, parties may not be willing to settle. As a result, the court or jury will have to resolve the issue. The trial process for medical malpractice is often arduous and challenging. 

Following the filing of a lawsuit, there is a discovery period that can span months or even years. It’s a formal process of exchanging information and facts between the parties concerning the witnesses and evidence to be presented at trial. 

The discovery phase may involve a series of interrogatory questions posed by your attorney to the defendant’s lawyer. It may also consist of a deposition or a witness’s sworn testimony. Subsequently, the court will evaluate the facts of the case and decide if there’s enough merit to proceed to trial. 

At trial, the plaintiff’s lawyer must prove every element of the case. Your attorney must present the information gathered during the discovery process and convince the jury that the medical professional was negligent. 

Attorneys of both parties will have an opportunity to cross-examine each witness. Closing arguments will begin when both parties rest their cases. After this, the judge will instruct the jury to deliberate the case. 

The jury will allocate damages once it decides who wins the case. You will then be summoned back to court, where the judge will announce the verdict. The losing party may appeal to the appropriate higher court. No damages will be awarded until the appeal process is resolved and there’s a final judgment.

Did you know?

On average, plaintiffs in Erb’s palsy lawsuits receive $1 million in settlement. The amount may vary due to the unique facts of each malpractice case.

Find an Erb’s Palsy Lawyer Through The Malpractice Center

Complications can emerge before, during, or shortly after childbirth, resulting in lifelong birth injuries. One common injury is Erb’s palsy. It often arises due to a healthcare professional’s careless mistakes or failure to respond appropriately and promptly to a challenging delivery.  

Suppose your child develops an Erb’s palsy due to medical malpractice. You may qualify for compensation to ease the financial burdens and ensure your child gets the justice and quality treatment they deserve. 

But hospitals and their insurance companies may try to hide the causes of birth injuries to avoid liability and pay the proper compensation. An attorney specializing in Erb’s palsy cases has the resources to pursue justice against these powerful entities. You’ll be in a more advantageous position if you work with an experienced Erb’s palsy injury lawyer. 

The Malpractice Center offers free consultation and legal information about birth injuries. Contact us now for a case evaluation so we can immediately connect you with an attorney based on your circumstances. 

Erb’s palsy can cause long-term disabilities in infants. The Malpractice Center can match you with experienced lawyers who can build your Erb’s palsy lawsuit.

FAQs on Erb’s Palsy Lawsuits

Informed consent is when a medical provider informs the patient about the potential risks, benefits, and alternatives in a given medical procedure or intervention. Although it results in a patient's authorization or agreement to proceed, it doesn't release the physician or other medical provider from medical negligence. 

Even if you signed a consent form, you may still be able to recover compensation for Erb's palsy. But you must establish that the medical provider didn't meet the applicable standard of care while treating you, causing your injury and losses. 

There have been numerous proposed reforms regarding medical malpractice law. Here are some of the notable proposals in recent years: 

  • Establish specialized medical malpractice courts where a judge with medical expertise hears and decides cases. Critics of this proposal emphasize that it will remove the litigant's right to a trial by jury. 
  • Shortening the statute of limitations or the maximum time a patient must file a lawsuit after sustaining the injury. 
  • Capping damages for medical malpractice cases. Several states have already implemented this reform with different restrictions. While some states restrict the total damages, others only limit certain damages, such as emotional distress, pain, and suffering.

The amount of time a lawsuit for Erb's palsy takes varies depending on the case's specifics. But in most cases, you can expect the suit to take several months to a few years.