Queller, Fisher, Washor, Fuchs & Kool, L.L.P.

Erbs Palsy Lawyers

Our Attorneys Have Successfully Represented Many Parents Whose Child Suffered Erb's Palsy Due to a Doctor's Negligence

Branxial Plexus Injury Erb's Palsy–also called Brachial Palsy–is a birth injury that causes weakness or loss of movement in the arm. Infants are typically diagnosed with Erb's Palsy after sustaining an injury to a bundle of nerves in the shoulder known as the brachial plexus. The injury typically occurs when the upper trunk of the C5-C6 nerves is severed during the birthing process. Erb's Palsy can be caused by a number of different factors, including excessive pulling on the shoulder or arms during birth. Furthermore, breech deliveries and the birthing of large infants have been known to increase the odds of a child being born with Erb's Palsy. In some cases Erb's Palsy can be avoided if the doctor recognizes the signs of an at-risk infant before birth and orders a Caesarian Section.

What Causes Erb's Palsy?

Erb's Palsy is an injury to the brachial plexus, a network of nerve fibers running from the spine, in particular, nerve roots in the lower cervical spine (C5, 6 and 7). Erb's palsy is a birth injury caused when the nerve fibers of the brachial plexus are stretched as a result of excessive lateral traction (force applied at an ear-to-shoulder direction) to the baby's head and neck. The brachial plexus can become stretched during birth when an infant's shoulder becomes impacted or stuck on the mother's pubis symphysis or sacral promontory (pelvic bones); this is referred to as shoulder dystocia. With the shoulder thus immobilized, lateral traction to the baby's head and neck can result in stretching and damage to the brachial plexus resulting in Erb's palsy.

When a baby suffers shoulder dystocia, it is an obstetrical emergency. In order to prevent Erb's Palsy, shoulder dystocia must be immediately recognized and addressed. Various maneuvers are used to free the impacted shoulder and resolve the dystocia, the most commonof which is called McRoberts, where the mother's knees and hips are flexed toward her head. Additionally, there are many other maneuvers which can be used to resolve shoulder dystocia and are available and described in medical literature.

While shoulder dystocia most commonly involves the anterior shoulder, it can also occur in the posterior shoulder. In either scenario, a shoulder becomes stuck thereby denying forward or outward movement of the effected shoulder. With the shoulder thus immobilized, if the doctor or other health professional delivering the baby applies excess force to the head or neck in an effort to deliver the baby, the nerves can be stretched and injured. The application of downward traction or force is commonly used to deliver the anterior shoulder, followed by upward traction to guide the posterior shoulder out. The traction used is generally very gentle. If too much force is used, however, the nerves can be irrevocably injured.

When is Erb's Palsy the Result of Medical Malpractice?

Studies have consistently shown that most clinicians underestimate the actual force they apply to the baby's head and neck. One experimental study found that during shoulder dystocia deliveries, clinicians actually apply two-times the amount of force than they estimate. Studies also show that during the birthing process, the doctor or other medical professional performing the delivery apply a wide range of force corresponding to varying degrees of difficulty in the delivery. Researchers conclude these findings indicate that the first reaction of the person performing a difficult delivery is to exert considerably larger force than he or she would otherwise use. Add to this the fact that the diagnosis of shoulder dystocia is based upon the judgment of the person delivering the baby. Because there is no clinically accepted definition for the diagnosis, its reported incidence could grossly underestimate its actual incidence. In fact, one study showed that 51% of the deliveries studied that required maneuvers utilized for a shoulder dystocia did not document shoulder dystocia in the medical record. More problematic, given the inability of clinicians to accurately assess the amount of force they are applying combined with the trend that physicians applying greater force as the difficulty of delivery increases, it's likely that more force is being exerted to the head and neck than may generally be acknowledged. When the Erb's palsy occurs due to a doctor's negligence, it may be the result of medical malpractice. For instance, should Erb's Palsy occur because the doctor used too much force or failed to recognize the shoulder dystocia, they may have acted negligently and could be liable for any lasting physical damage caused to the infant.

Thankfully, most cases of Erb's palsy are transient and resolve within the baby's first year of life. Unfortunately, however, there remain cases of permanent Erb's palsy. It is well-recognized that effectively all of the permanent Erb's palsy cases are related to shoulder dystocia-complicated births.

Our Attorneys Have a History of Successfully Proving Negligence in Erb's Palsy Cases

As discussed, there is no objective or generally accepted definition of shoulder dystocia. Nor is there a way to clinically measure the force being applied to the baby's head and neck during delivery. In many instances, the hospital record makes no reference to shoulder dystocia or to any complication during the delivery. The delivering clinician will invariably testify that he or she used only the gentlest traction to help guide the baby out. Yet, to prevail in these types of malpractice cases, the plaintiff must demonstrate a departure from generally accepted practice; meaning, in this context, that the clinician applied excessive lateral force to the baby's head. The excessive force must have been applied because either the medical provider failed to recognize a shoulder dystocia or because they failed to simply recognize the amount of force being applied.

In one example of such a case, our attorneys successfully obtained a significant award, and life-time medical care for a child with Erb's palsy. The delivering obstetrician denied that shoulder dystocia or any other delivery complication occurred. The hospital records made no reference to shoulder dystocia or other complication. The obstetrician further testified that only a gentle "sweeping" motion was applied to the baby's head and neck during delivery. The baby was born without any signs of intrauterine distress: his APGARS were 9/9; there was no bruising or mottling to his skin; his blood work was normal; and his muscle tone was good. The baby, however, undisputedly had a permanent Erb's palsy. Our attorneys were able to show that according to the accepted science and medicine, this injury had to have occurred due to excessive lateral force during delivery, notwithstanding the hospital record and defendant's testimony.

In other cases of Erb's palsy, the delivering clinician will document shoulder dystocia and the maneuvers used to resolve it. He or she will then defend the Erb's palsy case by saying the injury could not have been avoided. Given that the plaintiff must prove a departure from accepted practice, the plaintiff's attorneys must prove, based on accepted science and medicine, that shoulder dystocia itself, even with appropriately performed maneuvers to resolve it, is insufficient to cause a permanent Erb's palsy. Rather, it is the application of excessive lateral force that results in the nerve damage which causes permanent Erb's palsy

How Our Attorneys Prove Causation in Medical Malpractice Cases Involving Erb's Palsy

Another complication in Erb's palsy cases relates to causation. To prove any malpractice case in New York, the plaintiff, once he or she has proven a departure from accepted practice by the medical professional, must demonstrate that the departure proximately caused injury to the plaintiff. Demonstrating "proximate cause" means the plaintiff must prove that the doctor's malpractice was a substantial factor in bringing about the injury.

Erb's palsy defendants, backed by their organization, the American Congress of Obstetricians and Gynecologists, routinely claim that Erb's palsy has causes unrelated to the doctor's delivery. Generally, these "unrelated causes" are of two types: intrauterine malformations or abnormalities in the baby's positioning; or the so-called maternal propulsive forces. Under the first theory, the baby is injured as a result of some type of stress position. Under the second, the forces applied by the mother's contractions during the delivery are themselves responsible for causing the nerve damage. The positioning theory is usually straight-forward to address: in the absence of an intrauterine abnormality or some sign of distress in the newborn, the theory does not work. The maternal propulsive forces theory, however, requires significant experience and expertise to debunk.

For decades, there has been an attempt to show that permanent Erb's palsy is not the essentially exclusive result of shoulder dystocia. Some researchers have, therefore, posited that the maternal contractions that expel the newborn can cause the injury. Their studies, however, should be considered junk science. Despite this, it takes significant work to convince the court that this is so.

Expert Testimony Can be Essential to Proving Negligence in Erb's Palsy Cases

New York uses the Frye standard for admission of "novel" expert evidence. Such evidence is admissible if it is generally accepted within the relevant scientific community. In the seminal case of Parker v. Mobil Oil, New York's highest court also made clear that even if the Frye standard is satisfied, the evidence is admissible only if the accepted scientific methods were appropriately employed in the particular case.

In Muhammad v. Fitzpatrick, an intermediate level appellate court determined that defendants' experts could not testify that the maternal propulsive forces caused the baby's Erb's palsy because it both failed the Frye test and lacked the requisite foundation for reliability. Thereafter, inNobre v. Shanahan, a trial court, distinguished Muhammad based on the severity of the baby's injury, and contrary to Muhammad, decided that defendants' maternal propulsive forces evidence satisfied Frye. The court did, however, determine that the evidence was not shown to be sufficiently reliable and precluded the evidence. In contrast to these cases, another trial court, in Munoz v. Rubino, though acknowledging the Muhammad decision, merely determined that defendants' expert evidence concerning maternal propulsive forces satisfied Frye and that it was for jury to determine its worth. Thus, it takes experienced, devoted attorneys to address this issue.

Proving the baby's injuries at trial further complicates the case. Of course, an obstetrician is typically required to testify regarding the malpractice. A pediatric neurologist, however, is generally required to define the nature and degree of the baby's nerve injuries. This is important as to the injury itself, but can also impact whether there was malpractice.

Injury to the brachial plexus can be of several different types, each with its own degree of severity and prognosis. The nerve roots could be avulsed, meaning the nerve has been pulled out from the spinal cord and has no chance to recover. There could be a rupture of the nerve roots, meaning they have been stretched and at least partially torn, but not at the spinal cord. A neurapraxia occurs where the nerve has been gently stretched or compressed but is still attached, and not torn, and has a good prognosis. Where axons have been severed, an axonotemesis has occurred with a moderate prognosis. Lastly, a neurotemesis means the entire nerve has been divided and the prognosis is very poor. Plainly, the type of nerve injury affects the baby's prognosis and severity of injury. That is also, however, important for determining malpractice and subsequent available damages. It is widely accepted that permanent Erb's palsy is the result of excessive lateral force during delivery, whereas transient Erb's palsy - an injury that resolves - may have other causes. Within this framework, the nature of the nerve injury, as determined by a pediatric neurologist, can affect the severity of the injury and thus whether it is likely the result of excess force during delivery or possibly unrelated to delivery. This was a point discussed at length by the court in Nobre, and can be the determining factor in proving malpractice.

At Queller, Fisher, Washor, Fuchs & Kool, our attorneys use experts at the forefront of the medical field to help our clients obtain the compensation they may deserve. Our experts have had years of experience testifying in medical malpractice cases, as well as, the knowledge necessary to prove a medical professional may have acted negligently during the delivery.

How Can an Erb's Palsy Lawyer Help You?

In order to secure the compensation they may be entitled, parents of children with Erb's Palsy should contact an attorney as soon as possible. In an Erb's Palsy lawsuit, parents can recover compensation for any past and future medical bills resulting from the injury, damage to the infant's future earning potential, and pain and suffering. At Queller, Fisher, Washor, Fuchs & Kool, our medical malpractice attorneys understand the difficulties placed upon an infant and their family following an Erb's Palsy diagnosis. While we can't heal the emotional pain that is caused by a birth injury, we do what we can to lessen the financial burden. As a result, we look to secure maximum compensation for all of our clients who have a child born with Erb's Palsy.

Has your child been diagnosed with Erb's Palsy shortly after birth? Do you believe the doctor who delivered your child acted negligently? If so, you may have legal recourse. To see if you have grounds for a lawsuit, call 212.406.1700 or contact us online. All consultations with Queller, Fisher, Washor, Fuchs & Kool are free of charge.

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