Written by attorney John S. Hone

Winning my child's Erb's Palsy Case in this day and age.

How is it that cases can be worth a certain amount in settlement one day, and less or more the next? This is a question that surely is confusing to people who do not practice law day to day. The Erb's Palsy case, for the injury the newborn suffers to his or her brachial plexus, the nerves from the neck to the shoulder, arm, wrist and hands, at birth, is a clear example of changing settlement values.

What has happened? What can I expect? The one true fact is that these types of cases, where the family makes a claim for the Erb's palsy injury against the medical team and obstetrician delivering the baby, is very dynamic. It has to do with LITERATURE AND PUBLICATIONS. Both birth injury types of cases, Erb's Palsy, and Cerebral Palsy cases are especially sensitive to literature, and the most recently published literature.

In the 1990's Erb's Palsy cases had one major prevailing school of thought on the cause of the injury. The literature overwhelmingly supported that the injury to the nerves emanating from the neck of the baby, the brachial plexus nerves were caused by the physician or midwife pulling down and too hard on the head of the baby when the shoulder got caught up in the mother's pubic bone, or pelvic structure. Beginning in 2000 literature and studies began to take hold that the injury could happen before the physician even touched the head of the baby. This notion grew and grew until the current scenerio wherein there are two explanations for the cause of the injury to the baby. It is easy to understand how that can affect the settlement value of the case: If there is only one explanation for the cause, it is the cause. Easy to prove. If there are two explanations, the dynamic is the exact opposite. How to you prove more than 50% that the doctor did it, when they are offering an explanation that he did not, and rolling out 1,2, or 3 experts to look the jury in the eye and testify that the forces of labor caused the injury before the doctor ever touched the head, or that the forces of labor plus the traction of the doctor, that was not negligent caused the injury? Obviously, the professional organizations and publications for the Obstetricians encouraged, supported and were quick to adopt "junk science" because it protected their membership from lawsuits, and reduced the amount of payouts.

The crime is that children are left out in the cold and left uncompensated for genuine claims of injury, that impact them for the remainder of their life. What can you do? Well, if you were smart enough to videotape the labor and delivery, your case will settle because the proof of the pulling on the head is there to see. I have settled every single Erb's Palsy case I have ever had when there is a video. Every single video I have contradicts what the medical team documents in the record. But for the video many cases would not be provable, because the medical team and physician know what to document in the record to reduce their exposure. But you cannot turn back the hands of time and video what was not video'd.

So what can you do? Bring witnesses into the labor and delivery room. Have them closely observe as the baby is born. Have them write down what they witnessed. The testimony: "I dont remember it was a long time ago", loses cases, it does not prove cases. Draw a picture of the bed and where everyone was standing. Write down the names of the doctors and nurses and where they were standing. Write down the type of bed. Talk to everyone else to see what they witnessed. Show the injured arm to the nurses in the nursery. Check the chart to see if they have recorded the observation of the arm.

It is an uphill battle. If the baby if over 10 pounds, the mother had diabetes, the baby was delivered vaginally, and the injury is severe (still after 2 years), than with proper legal representation you should still recieve a very large settlement. However, If the injury is moderate, the child can lift the arm halfway, but not all the way to the ceiling, the size was not abnormally large, the mother did not have diabetes, than it is going to depend on the experience of the lawyer and the experts that he hires more than any other criteria. Inexperienced lawyers, or busy lawyers, or production line lawyers routinely flipping cases and not working them up properly and aggressively hurt everyone. Trends of settlement values are created, and that is what controls the risk management evaluation of your claim: the prevailing trends of money paid out on similar claims. The thing I hear most from risk managers is: "Why should I pay you more than this on your case, when this is what I pay everyone else? What is different about your case that demands more money". Thankfully, I am ready for the question and begin my planned presentation to show them exactly why, get a good settlement, and take care of my client.

Additional resources provided by the author

The older editions of Williams Obstetrics, to see what was commonly known. Compare to the newer editions of Williams to see the difference the push to publish exculpatory literature has made. Do the same with ACOG technical bulletins and Commitee Opinions. They are the product of politics and science. Online sources are especially suspect, and often planted to persuade the potential jury pool. Go with you common sense: if you pull on something too hard it breaks.

Free Q&A with lawyers in your area

Avvo personal injury email series

Can’t find what you’re looking for?

Post a free question on our public forum.

Ask a Question

- or -

Search for lawyers by reviews and ratings.

Find a Lawyer