Obstetricians Can’t Blame Birth Forces For Common Shoulder Injury In Babies, Rules New York Appellate Court

One of the most common birth injuries we see is Erb’s Palsy, which is caused by injuries to a baby’s brachial plexus during delivery.

There are a variety of factors that can increase the risk of a brachial plexus fracture, which damages the nerves that carry signals from the brain down through the arm and the hand, such as macrosomia (when a baby weighs more than 9 pounds at birth), diabetes in the mother, or gestation beyond 40 weeks. In our experience, however, the majority of Erb’s Palsy is preventable and was caused by medical malpractice.

During the labor, delivery, and birth process, the baby has to go through a number of twists and turns. Sometimes, the baby’s legs are pointed to come out first (the breech position), which can cause its own concerns, but most babies come out head first. As the baby comes out, their shoulder can become stuck on the mother’s pelvic bone, a condition known as shoulder dystocia. Usually, shoulder dystocia can be treated by:

• putting a small incision in the birth canal (known as an episiotomy),
• twisting the baby in a way known as the McRobert’s Maneuver,
• pushing down on the mother’s pubic bone, or, sometimes,
• breaking the infant’s clavicle bone.

Sometimes forceps or vacuums can be used in the process, too. Treating shoulder dystocia can be difficult and complicated procedure, but that is why obstetricians have so much training, to ensure that they can consistently choose the right technique and then perform it appropriately.

Unfortunately, many times obstetricians are in a hurry to move on to the next patient, and so they either use too much force or push the baby in the wrong direction, breaking the brachial plexus and thereby causing the nerve injury that later leads to Erb’s Palsy.

We have represented numerous children with palsy disorders as a result of medical malpractice. In the Erb’s Palsy lawsuits, one of the most common defenses raised by the doctor’s and hospital’s defense lawyers is an argument that the baby’s injuries were simply caused by the birthing process and were unavoidable. We have known and argued for years that there is little or scientific evidence of this theory, and that virtually every medical study to investigate it has concluded that the normal forces of the birthing process aren’t enough, and don’t push in the necessary ways, to cause the type of brachial plexus injury that leads to Erb’s Palsy. Unfortunately, many courts allow paid defense expert witnesses to make these arguments, and sometimes juries are misled into believing them.

Last week, however, an appellate court in New York finally put a stop to that, and held that the experts testifying on behalf of doctors and hospitals can’t use the “blame Mother Nature” argument without showing some real scientific proof that their theory might be correct.

Although the ruling doesn’t apply directly to lawsuits filed outside of New York, we are gratified to see courts coming around to the realization that, in many of these cases, the only reason the child was injured was because of the obstetrician’s malpractice.

Since 1958, our Erb’s Palsy and shoulder dystocia birth injury lawyers have fought for the rights of children left with permanent nerve injuries as the result of negligence during their birth and delivery. Our experienced legal-medical teams made up of lawyers, doctors, and nurses have represented thousands of parents and children to ensure they receive the full compensation and benefits to which they are legally entitled for their preventable injuries, and our collective medical and legal knowledge enabled our firm to obtain obtain two of the largest medical negligence verdicts in Pennsylvania history, $100 million and $55 million, both on behalf of children injured by malpractice. If your baby’s brachial plexus was broken during delivery, leading to nerve injuries like Erb’s Palsy, contact one of our experienced lawyers, doctors or nurses for a free and strictly confidential consultation.