Erb’s Palsy FAQs

Erb's palsy affects nerves in the upper brachial plexus and can cause weakness, reduced sensation, limited motion, or paralysis in the affected shoulder and arm. The condition may follow a difficult delivery involving shoulder dystocia, a larger infant, a breech presentation, or prolonged labor, but the presence of one of these circumstances does not by itself prove negligence. Under New York law, a viable medical malpractice claim generally requires proof that a healthcare provider departed from accepted medical practice and that the departure was a substantial factor in causing the child's injury. Negligence may be at issue if the delivery team used excessive lateral traction on the baby's head or neck, failed to employ appropriate maneuvers after recognizing shoulder dystocia, or failed to plan a medically indicated cesarean delivery.

A thorough investigation usually begins with the prenatal chart, maternal risk factors, ultrasound findings, labor progress notes, fetal monitoring records, medication records, delivery notes, nursing documentation, and the baby's examinations after birth. The records may show when shoulder dystocia was recognized, which maneuvers were attempted, how long the emergency lasted, who participated in the delivery, and when arm weakness was first documented. Depositions of the obstetrician, nurses, midwives, and other providers can clarify events that a brief delivery note does not fully describe. Pediatric neurology and orthopedic records, imaging, electrodiagnostic testing, surgical findings, therapy notes, and photographs or videos of the child's movement may help establish the nature and severity of the injury. A New York birth injury attorney may consult obstetric and pediatric experts to compare the documented care with accepted practice and to distinguish an injury caused during delivery from one related to another medical cause.

Responsibility depends on each person's role and the relationship between the providers and the facility. An obstetrician may be liable for using an unsafe amount or direction of traction, choosing an inappropriate delivery method, or failing to respond reasonably to known risks. Nurses, midwives, residents, or other clinicians may bear responsibility if their own departures from accepted practice contributed to the injury. A hospital or medical group may also be liable for the negligence of an employee acting within the scope of employment, although New York rules concerning employee status and institutional responsibility are fact specific. Identifying the proper defendants requires more than naming everyone present. Counsel must examine employment arrangements, privileges, contracts, records, and testimony to determine who owed duties to the mother and child and whose conduct was a substantial factor in causing harm.

The damages available depend on the child's prognosis and the losses caused by the injury. A claim may seek the reasonable value of past and future medical treatment, physical and occupational therapy, diagnostic testing, medication, braces or adaptive equipment, transportation, home assistance, and surgery when those needs are attributable to the malpractice. If lasting weakness or limited dexterity is expected to affect education, independence, or employment, vocational and economic experts may evaluate future services and diminished earning capacity. New York law may also permit recovery for the child's conscious pain and suffering and loss of enjoyment of life. Parents may have a separate claim for certain expenses they are legally responsible to pay, subject to the applicable rules and deadlines. Attorneys often work with treating physicians, rehabilitation specialists, life care planners, and economists to describe future needs without reducing a child's life to a single diagnosis.