Filing an Erb’s Palsy Lawsuit: What Parents Need to Know
If you’ve been through a difficult childbirth that may have injured your baby, and you’re concerned that they suffer from Erb’s palsy (otherwise known as child’s brachial plexus injury), then you could be entitled to file a birth injury lawsuit on their behalf for significant compensation. Navigating the complexities of a birth injury dispute — and filing an Erb’s palsy lawsuit — can be overwhelming, especially for a first-time plaintiff. That’s why we encourage you to get in touch with a qualified birth injury attorney who can provide ample guidance as you move forward.
Contact 1-800-THE-LAW2 for a free consultation with a birth injury lawyer in our network. Brachial plexus injuries are serious and may require extensive treatment, such as physical therapy. If your child suffers from Erb’s palsy, then it’s important to consult an Erb’s palsy attorney as soon as you can. They’ll be able to provide a case evaluation and guidance on how best to proceed with your legal claims.
That being said, if you’d like to learn about filing an Erb’s palsy lawsuit, and about preventable birth injuries in general, then keep reading! We’ll cover some of the important basics of a child’s birth injury and how to approach an Erb’s palsy case.
Understanding Erb’s Palsy
Erb’s palsy is a condition that affects the brachial plexus nerves, which control the arm. It is a type of birth injury that can occur during delivery, typically due to excessive force or trauma to the baby’s head, neck, or shoulder. This injury can lead to significant challenges for your child, including weakness, numbness, or even paralysis in the affected arm. Understanding the nature of Erb’s palsy is the first step in seeking appropriate treatment and legal recourse for a child’s injury.
Definition of Erb’s Palsy
Erb’s palsy, also known as brachial plexus birth palsy, is characterized by damage to the brachial plexus nerves. These nerves are responsible for sending signals from the spine to the shoulder, arm, and hand. When these nerves are injured, it can result in symptoms such as numbness, weakness, or paralysis in the affected arm. The severity of Erb’s palsy can vary, with some children experiencing mild symptoms that improve over time, while others may require extensive medical intervention.
Causes of Erb’s Palsy
Erb’s palsy can be caused by various factors during the birthing process, including:
- Excessive force or traction on the baby’s head or neck during delivery: This can occur when the healthcare provider applies too much pressure while trying to deliver the baby.
- Misuse of forceps or vacuum extractors during delivery: Improper use of these tools can lead to significant trauma to the baby’s brachial plexus nerves.
- Prolonged or difficult labor: Extended labor can increase the risk of complications, including brachial plexus injuries.
- Large birth weight or fetal macrosomia: Babies with higher birth weights are more susceptible to shoulder dystocia, which can lead to Erb’s palsy.
- Breech presentation or other abnormal fetal positions: Unusual positions during delivery can increase the likelihood of nerve damage.
Understanding these causes can help parents identify potential medical negligence and take appropriate legal action.
What is Erb’s Palsy, and how does it occur?
Erb’s palsy (also known as brachial plexus birth palsy) is a common neurological birth injury that results in shoulder and arm weaknesses and functionality issues — these are caused by difficult birthing, which applies significant force on the upper thoracic nerves and thereby cause neurological damage and potentially long-term injuries.
Put simply: during delivery, birth canal issues may require that the healthcare provider shift your child’s head to ensure that their shoulders can properly move through the canal. During this movement, the brachial plexus nerves in the neck and shoulder can stretch, tear, or otherwise get damaged.
Symptoms of Erb’s palsy include:
- Paralysis of the shoulder, arm, or elbow
- Weakness of the shoulder, arm, or elbow
- Numbness/tingling in the arm or hand
- Defaulting to a hand position with curled fingers and palm pointed backward
- And more
Wondering if your baby has Erb’s palsy? You can have it diagnosed by asking your healthcare provider to conduct an electromyography test (EMG), or one of various imaging tests (such as an MRI, CT scan, or even an X-ray to determine if there are broken bones involved).
Is Erb’s palsy rare?
Erb’s palsy is rare in absolute terms (i.e., it’s not common for Erb’s palsy to occur) but in relative terms, it is one of the more common types of birth injuries. According to the National Institutes of Health, the prevalence of Erb’s palsy ranges from 0.9 to 2.6 occurrences per 1,000 live births.
Is Erb’s palsy permanent?
It depends. Erb’s palsy presents differently depending on the severity of the injury, as well as the nature of the injury (and the effectiveness of treatment). Here’s what you can generally expect:
- Some Erb’s palsy cases resolve on their own, without treatment. This can take a few months, or a few years — but they do ultimately resolve.
- Some Erb’s palsy cases resolve due to early treatment of the shoulder and arm. This can involve surgical intervention, rehabilitative therapy, pharmaceutical intervention, and/or other treatments.
- Some Erb’s palsy cases resolve after more significant treatment. Substantial corrective surgery, for example, can treat more severe Erb’s palsy issues that would not have otherwise resolved on their own.
- Finally, some Erb’s palsy cases are not resolvable, whether on their own or after substantial treatment. Even if the major symptoms slightly subside over time, there will still be functionality issues in the shoulder and arm that can affect the individual for a lifetime.
Medical Malpractice and Birth Injuries
Medical malpractice can significantly contribute to birth injuries, including Erb’s palsy. When healthcare providers fail to adhere to standard medical procedures or protocols, it can lead to preventable birth injuries. Medical negligence might involve improper use of delivery tools, failure to monitor the baby’s position, or not responding appropriately to complications during labor. These lapses in care can result in serious injuries to the baby, such as brachial plexus injuries, which may have long-term consequences. Recognizing the role of medical malpractice in birth injuries is crucial for holding healthcare providers accountable and seeking justice for your child through Erb’s palsy lawsuits.
Eligibility for an Erb’s Palsy Lawsuit
Who Can File a Lawsuit?
Parents or guardians of a child born with Erb’s palsy due to medical malpractice or negligence have the right to file a lawsuit on behalf of their child. This eligibility hinges on the injury being a direct result of inadequate care provided by healthcare professionals during delivery. Instances of medical malpractice can include the excessive use of force during delivery, improper application of forceps or vacuum extractors, or a failure to adequately monitor the baby’s condition throughout labor. If any of these actions or omissions led to your child’s brachial plexus injury, you may have grounds for a birth injury lawsuit.
Statutes of Limitations for Filing a Claim
The statute of limitations for filing an Erb’s palsy lawsuit varies by state, typically ranging from 2 to 3 years from the date of the child’s birth. This legal deadline is crucial because failing to file within this period can result in the forfeiture of your right to seek compensation. Given the complexities involved in medical malpractice cases, it is essential to consult with an experienced Erb’s palsy lawyer as soon as possible. They can help ensure that your claim is filed within the applicable statute of limitations, safeguarding your child’s right to compensation for their injury.
Can I sue on behalf of my baby?
Yes, you can. An injured minor’s legal claims may be brought on their behalf by their guardians (i.e., parents).
This is important, as they cannot bring an action on their own, so the only way for their legal rights to be effectuated is through their guardians — it is, therefore, critical that you take steps to protect their rights and secure compensation for their child’s injury. Failure to do so will mean that there is no other option for them to effectuate those rights, as they simply can’t handle the dispute on their own. Consulting an experienced Erb’s palsy lawyer can help navigate the legal complexities and ensure the best possible outcome.
Steps to Take After a Brachial Plexus Injury
If your child has suffered a brachial plexus injury, it is essential to take the following steps to ensure they receive the best possible care and to protect your legal rights:
- Seek medical attention immediately: Prompt evaluation by a healthcare professional is crucial to assess the extent of the injury and begin appropriate treatment.
- Consult with a pediatrician or a specialist: Specialists, such as pediatric neurologists or orthopedic surgeons, can provide targeted care and develop a comprehensive treatment plan for your child.
- Document all medical records and expenses: Keep detailed records of all medical visits, treatments, and related expenses. This documentation will be vital if you decide to pursue a legal claim.
- Consider consulting with an Erb’s palsy lawyer: An experienced Erb’s palsy lawyer can help you understand your legal options and guide you through the process of seeking Erb’s palsy compensation.
- File an Erb’s palsy lawsuit: Taking legal action can hold negligent healthcare providers accountable and help secure Erb’s palsy compensation for your child’s medical expenses, pain and suffering, and other related costs.
By following these steps, you can ensure that your child receives the necessary care and that your family’s rights are protected.
Factors Affecting Settlement Amounts
Severity of the Injury
The severity of your child’s Erb’s palsy injury plays a pivotal role in determining the settlement amount. More severe injuries, which may result in permanent nerve damage, paralysis, or significantly limited mobility, typically warrant higher settlements. The extent of the injury, including the degree of nerve damage, the associated medical expenses, and the child’s long-term prognosis, will be carefully evaluated to determine the appropriate compensation.
What sort of compensation can you get for filing an Erb’s Palsy lawsuit?
Compensation for any personal injury claim — including Erb’s Palsy and other birth injury claims — is based on the losses that were sustained as a result of the defendant’s negligence, recklessness, or intentional misconduct. Erb’s palsy compensation can cover various losses including medical expenses, pain and suffering, and more.
Claimable losses include, but are not limited to:
- Lost wages
- Loss of earning capacity
- Loss of property
- Healthcare expenses (i.e., medical bills for whatever medical treatment you received to deal with your injuries, supported by your various medical records)
- Pain and suffering
- Loss of enjoyment of life
- Loss of companionship
- And more
Though many of these damage categories are likely to be relevant if you’re pursuing legal claims on your own behalf (as the injured parent), the damages may be different if you’re pursuing legal claims on behalf of your injured child.
For example, there would be no wage loss damages, but there would be an arguably even more substantial “loss of earning capacity” aspect since it would have to account for your child’s entire working life. Given the dynamic nature of damages, it’s worth consulting a qualified personal injury attorney for guidance on how to calculate and support a comprehensive claim for compensation.
How do I know whether I have an actionable birth injury claim?
You’ll have a legally actionable birth injury claim if you can show that:
- The baby experienced injury during the childbirth process (which may include a time after the actual birthing, while under the care of treating physicians); and
- The baby’s injuries were caused — at least partially — by the medical negligence of the treating professionals. This forms the basis of an Erb’s palsy case.
Simple, right? In truth, however, there are many potential areas of conflict in these basic elements.
For example, you might find that the defendant will argue that — even if there was medical negligence — the negligence did not cause or contribute to your baby’s injuries, and so they can’t be held liable for damages.
Given these potential conflicts, it’s critical to work with an experienced birth injury lawyer who can navigate the push-pull of legal argument in an effective and efficient manner.
How much does it cost to hire an Erb’s Palsy lawyer to litigate my claims?
Many people mistakenly believe that hiring Erb’s palsy lawyers (like any other personal injury lawyer) will be too expensive, or beyond their budget. In reality, however, most of Erb’s Palsy lawyers work on a contingency fee basis.
This means that there is no upfront or out-of-pocket cost. Instead, they provide legal representation in exchange for a percentage cut of the compensation they’re able to secure on your behalf. This percentage can range from 25 to 40 percent (or more), depending on your hiring negotiations.
In a contingency fee arrangement, you don’t pay unless and until you win compensation. If you don’t win, then you can walk away from your dispute without any attorney fees or other costs. This reduces the burden and risk of pursuing your legal claims substantially. There’s really no downside to moving forward with an attorney on a contingency fee basis.
How much time do I have to file an Erb’s palsy lawsuit?
All personal injury claims – including those for Erb’s palsy (a.k.a. brachial plexus injury) are subject to a statute of limitations. The statute of limitations acts as a deadline for your claim. If you do not file a lawsuit for Erb’s palsy compensation before the deadline passes, then courts can automatically dismiss your Erb’s palsy claim as abandoned or relinquished under the law. This can prevent you from obtaining compensation, and even limit your ability to secure Erb’s palsy lawsuit settlements.
Statute of limitations deadlines vary from claim-to-claim and state-to-state. In California, for example, medical malpractice Erb’s palsy claims are subject to a one-year statute of limitations deadline (counting from the date that the patient discovered the injury). That’s a tight deadline for medical malpractice claims, which are already rather challenging to litigate! So you’ll want to take your medical malpractice Erb’s palsy claim to a qualified attorney as soon as possible – they’ll be able to evaluate whether the medical malpractice claim is actionable and worth pursuing, and if so, will push it through in a timely manner so that courts can’t dismiss the medical malpractice claim on the basis that you delayed too long.
Contact 1-800-THE-LAW2 for a Free Legal Consultation
If you or your loved one has suffered an Erb’s Palsy injury, or some other birth injury issue, then you could be entitled to sue for compensation under the law. As you explore your options, however, you are likely to find the dispute process rather confusing and even overwhelming at times. We encourage you to seek legal counsel so that you can be guided along by a professional.
Contact 1-800-THE-LAW2 for a free consultation with experienced birth injury lawyers in our network. During this initial consultation, you’ll have the opportunity to discuss your case in detail and learn about the next steps for securing (and maximizing) compensation. So pick up the phone and call us today to get started with a free case evaluation.
We look forward to assisting you.
