Erb’s palsy is unfortunately a common birth injury in the United States. Also known as Erb–Duchenne palsy, it’s a form of paralysis that results from trauma to the upper group of the arm’s main nerves, known at the Erb’s point, at the merger of the C5 and C6 nerves. In an overwhelming majority of Erb’s palsy incidents, the injury happens during delivery and occurs directly from a healthcare provider using improper medical techniques. Consequently, loved ones are left not only with the emotional toil of dealing with their baby’s injuries, but also exorbitant costs and expenses associated with the infant’s medical treatment and care.
Erb’s Palsy and Medical Malpractice
When a baby is born, the physician performing the delivery has an obligation to ensure that both infant and mother are as safe and healthy as possible, and that no medical issues arise that could have been prevented. When doctors fail to uphold the standard of medical care and quality required of them, they may be responsible for medical malpractice.
Erb’s palsy injuries that occur due to medical malpractice generally happen when:
- Birth-assisting tools, such as forceps or vacuum extraction, is used improperly
- When a doctor pulls improperly or too hard during deliver
- When a doctor fails to properly monitor fetal size, and in turn fails to schedule a C-section for large infants (fetal macrosomia)
If a baby is unusually large and/or in the breach position, the chances of an Erb’s palsy injury heightens. Yet, it’s the physician’s responsibility to know the estimated size of the infant as well as the position so that all measures can be taken to ensure injuries are avoided.
With modern medical advancements coupled with the correct prenatal monitoring, physicians should not only be able to tell when a baby is in the breech position, but also what the infant’s estimated weight is. Failure to properly monitor fetal weight and position are two of leading reasons that Erb’s palsy happens. Since measures to prevent Erb’s palsy are available, it’s widely known as an injury that’s avoidable.
What is an Erb’s Palsy Settlement?
An Erb’s palsy settlement is an agreement between a plaintiff (those affected by medical malpractice) and a defendant (the physician and/or the hospital or medical center) which states that the defendant (s) will compensate the plaintiff (s) for the expenses associated with an infant’s Erb’s palsy injury.
Since most healthcare providers and hospitals understand that certain birth injuries could have been avoided, especially if there is overwhelming evidence that points to medical malpractice, they’ll agree to compensate the victims rather than risk their chances at a costly, time-consuming trial. In addition, many times a settlement will provide a confidentiality clause, and rather than risk negative publicity, many hospitals and doctors will opt for a private settlement.
Keep in mind, however, that defendants in a birth injury lawsuit rarely readily admit medical mistakes without having proof of negligence stacked against them. Therefore, the attorneys for both parties usually go through a “discovery” phase, in which key evidence and witnesses are made available to each side (plaintiff and defendant). It’s during the discovery phase of the lawsuit that the defense understands exactly what proof has amassed against them, and in most cases, will offer to settle. In some instances, the defense may not settle until right before a trial is to start, and in other cases, a settlement might not be reached until the trial has actually started.
What Damages Are Covered in an Erb’s Palsy Settlement? How Much Can I Expect to Receive?
Erb’s palsy injuries tend to vary greatly. For instance, some infants have only a mild case of Erb’s palsy and will go on to heal with little or no treatment. Other babies, however, may need physical therapy and rehabilitation to promote healing, while others may need surgery. Even with the best of treatment options, some babies will never fully recover from Erb’s palsy and will have limited function of the affected arm for a lifetime.
Therefore, it’s difficult to ascertain the exact amount of compensation you will receive in an Erb’s palsy settlement, as the severity of these types of injuries are so diversified. Other factors, including the events surrounding the baby’s injury occurred, the state you live in, and how the injury affects your livelihood are also taken into account. These factors usually vary significantly from one case to the next.
In general, however, the damages covered under an Erb’s palsy settlement, can include:
- Medical expenses, including costs for medication, therapy, surgery (if needed), physical and occupational therapy, transportation costs to and from medical appointment, and any other costs associated with the medical care of the baby due to the injuries
- Home accommodations, if needed
- Assitive devices such as casts, bandages, etc.
- Lost wages or loss of income, should a parent need to leave work to medically care for the infant full-time
- Damages for emotional pain, physical trauma, and turmoil
Examples of Erb’s Palsy Settlements
Although Erb’s palsy lawsuits aren’t as prevalent as cerebral palsy lawsuits, when Erb’s palsy cases do happen, the results of the settlements are generally substantial. The following examples are among a few of the many considerable Erb’s palsy settlements in recent years. Although it’s difficult to say how much you’ll receive in your own Erb’s palsy settlement, these cases can give you a overall rough estimate, according to the details of each incident.
$3.5 Million Brooklyn, New York Settlement
The parents of a now five-year-old girl who suffered a severe injury to her brachial plexus nerves during delivery and after shoulder dystocia, was awarded a $3.5 million settlement against a Brooklyn hospital and physician. According to reports, the physician applied excessive force to the infant’s head while delivering her, resulting in permanent injuries. Since the settlement was confidential, the names of the physician, hospital, and other parties involved are disclosed.
Vassar Brothers Hospital Erb’s Palsy Settlement
In 2010, an infant’s head was pulled forcefully during delivery at the Vassar Brothers Hospital in Poughkeepsie, New York. Reports indicate that “moderate traction” was used during the delivery, yet the infant went on to develop injuries to the brachial plexus nerves. The baby was flown to Texas, where leading Erb’s palsy doctor, Rahul Nath, M.D, performed surgery on the affected nerves. According to reports, however, the child still has left arm difficulties. As a result, the hospital settled with the plaintiffs for $900,000.
$2.5 Million Erb’s Palsy Settlement
In another confidential agreement, a family in New York was awarded $2.5 million after a physician failed to accurately determine the infant girl’s large size prior to delivery. As a result, the baby’s shoulder became lodged in the mother’s pelvic area during delivery. The doctor then applied too much traction on the baby’s head, resulting in damage to the nerves in her arm. Shortly after, the baby underwent surgery performed by another physician, and although it helped her regain partial activity of the affected arm, she is expected to have limited function to the injured arm indefinitely. The payment was scheduled to be dispersed throughout the child’s life, in separate payments.
For more in-depth information on Erb’s palsy, including causes, treatment options, risk factor, long-term outlook, and more, refer to our article Erb’s Palsy. For information on all types of brachial plexus injuries, refer to our article, Brachial Plexus Injury.