When an infant is diagnosed with Erb’s Palsy, it can be devastating. Nerve damage during childbirth can leave the infant faint and unresponsive. As a parent, you may feel lost, unsure of how this happened, and overwhelmed by the challenges ahead. However, there is also a natural urge to fight – for their future, care, and justice.
If you are a parent to a child with Erb’s Palsy, understanding your legal rights and knowing that you can seek compensation can be crucial to providing the care your child needs. This article will cover the legal pathway to fight for compensation due to medical negligence.
It’s important to know that you have options!
What is Erb’s Palsy?
Erb’s Palsy, also known as obstetric brachial plexus birth palsy, is a condition that affects the movement of an infant’s arm and shoulder due to nerve damage during childbirth. This often occurs when excessive pulling or pressure is applied during delivery, particularly in cases of prolonged labor, when the baby is larger than average, or following a cesarean section.
Symptoms of Erb’s Palsy can range from mild weakness to complete paralysis of the arm. While some infants recover fully, others may require extensive therapy or surgery.
Is Erb’s Palsy Always a Result of Medical Malpractice?
Erb’s Palsy is most often a result of medical malpractice when healthcare professionals fail to follow proper procedures during childbirth, leading to injury of the brachial plexus nerves in a newborn’s shoulder.
This type of birth injury often occurs in the following situations:
- Excessive Force During Delivery: If a doctor or midwife applies too much pressure or pulls too hard on the baby’s head, neck, or shoulders, especially during a difficult delivery, the brachial plexus nerves can be damaged.
- Improper Use of Delivery Tools: When tools like forceps or vacuum extractors are used incorrectly or excessively during delivery, they can contribute to nerve damage in the baby’s shoulder area.
- Failure to Identify and Address Labor Complications: Medical providers are expected to recognize high-risk situations that could lead to complications during delivery, such as a large baby or prolonged labor. If they fail to take preventive steps, the risk of injury increases.
- Lack of Proper Monitoring: Throughout labor and delivery, healthcare providers are required to monitor both the mother and baby for any signs of distress or complications. If they fail to detect fetal distress, mispositioning, or other issues that could result in a difficult delivery, they may be considered negligent.
If it is proven that the medical team’s actions—or lack thereof—directly caused the brachial plexus injury, the parents of the child may be entitled to file a lawsuit for compensation.
Who Can Sue for Erb’s Palsy?
In the case of Erb’s Palsy, several parties may be eligible to file a lawsuit seeking compensation for the injury. If you fall into any one of these categories, don’t hesitate to contact us to discuss your case.
Parents or Legal Guardians
Perhaps the most common and passionate advocates against Erb’s Palsy are the parents or legal guardians of the affected child. Parents are eligible to file a lawsuit on behalf of their child to recover damages. These can include damages for:
- Medical expenses related to the injury and future care
- Emotional distress and trauma
- Loss of quality of life or future earning potential
- Pain and suffering caused by the injury
A parent will typically file an Erb’s Palsy lawsuit while the child is still a minor, as this can help ensure that their immediate medical needs and future care are financially supported.
The Affected Child
In some jurisdictions, the child themselves may file a lawsuit once they reach adulthood, typically at 18 years old.
This means that any claims about pain, suffering, or future medical expenses can be pursued directly by the now-adult child if they did not have adequate representation as a minor. This allows the individual to seek compensation for the long-term impact Erb’s Palsy has had on their life.
Estate Representatives
In tragic cases where complications from Erb’s Palsy result in the child’s death, the estate representative or family members may file a wrongful death lawsuit. However, the ability to file such a lawsuit depends on the specific circumstances surrounding the case and state laws.
Such a claim would seek compensation for:
- Medical expenses leading up to the child’s death
- Funeral and burial costs
- Loss of companionship or emotional distress
- Pain and suffering endured by the child before their passing
Grounds for Filing an Erb’s Palsy Lawsuit
To successfully pursue an Erb’s Palsy lawsuit, the plaintiff must demonstrate that the injury resulted from medical negligence. In other words, they must prove that the healthcare provider deviated from the accepted standard of care during childbirth.
Some common grounds for establishing negligence in an Erb’s Palsy case include:
- Proof that the healthcare provider did not follow standard medical practice during delivery, resulting in nerve damage
- Proof that the medical provider did not adequately monitor the baby’s position or signs of distress, which led to improper delivery methods
- The misuse of forceps or vacuum extraction contributed to Erb’s Palsy injuries
Establishing negligence is key to proving liability and receiving compensation. At The Oshman Firm, we specialize in bringing medical malpractice suits, proving that medical negligence resulted in an Erb’s Palsy diagnosis.
Got a Case? How to File an Erb’s Palsy Lawsuit
If you are a victim of medical negligence resulting in Erb’s Palsy or are the parent/guardian of a child diagnosed with Erb’s Palsy, you may be due compensation. At The Oshman Firm, we help individuals advocate for their rights, achieving justice in their Erb’s Palsy case.
Step 1: Gather Necessary Medical Information
Before proceeding with any legal action, it’s advisable to consult with a medical professional to understand the extent of the baby’s injuries and potential ongoing care needs. A pediatric neurologist can provide insight into the condition, prognosis, and necessary treatments. An Erb’s Palsy diagnosis is needed, and the details of which can be submitted as evidence.
Step 2: Collect Your Evidence
In addition to Erb’s Palsy diagnosis, gather evidence to support your case. This may include:
- Medical Records: Hospital records, delivery notes, and any other documentation related to the child’s birth.
- Witness Statements: Speak with any witnesses who were present during the birth and may provide insights or observations about the delivery process.
- Expert Opinions: Engage medical experts who can attest to whether the standard of care was met during delivery.
Step 3: Consult a Medical Malpractice Attorney
To have a successful case, we strongly recommend seeking counsel from a trusted medical malpractice attorney. Engaging an attorney with experience in birth injury cases is essential. At The Oshman Firm, we can help assess your case’s viability and guide your family through the complex legal process. We will also handle the legal documents and representation in court.
Step 4: File the Lawsuit
Once the attorney determines there is a solid case for negligence, they will file a complaint in the appropriate court. The complaint will outline the allegations against the healthcare provider(s) and detail the injuries sustained by the child. During Discovery, both parties will exchange evidence, documents, and witness testimonies in preparation for trial.
Step 5: Prepare for Mediation or Settlement Negotiations
Some Erb’s Palsy cases settle out of court and can result in mediation or settlement negotiations. Your attorney will negotiate compensation for medical expenses, pain, trauma, and future care on your behalf.
Step 6: Go to Trial
If no settlement is reached, the case will go to trial. During the trial, both sides will present their arguments and evidence. A jury or judge will then determine whether medical negligence occurred and decide any compensation awarded.
Step 7: Post-Trial Motions or Appeals
After the verdict in an Erb’s Palsy lawsuit, either party (the plaintiff or the defendant) may take further legal action through post-trial motions or appeals if they are dissatisfied with the outcome. These legal processes provide an opportunity to challenge the decision or seek modifications to the judgment.
Both post-trial motions and appeals must be filed within a specific time frame, which varies by jurisdiction but is typically within 30 days of the verdict. Post-trial motions and appeals allow either party to challenge the verdict or seek corrections, particularly if legal errors or procedural issues occur during the trial. These steps can be crucial in ensuring that justice is properly served and that both parties have a fair chance at achieving a just outcome.
Seek Counsel from a Trusted Medical Malpractice Attorney
If your child has suffered from Erb’s Palsy due to medical negligence, securing legal representation can make a significant difference in getting the compensation you deserve. At The Oshman Firm, we understand the emotional and financial toll birth injuries place on families. Our experienced medical malpractice attorneys are dedicated to fighting for justice and ensuring that healthcare providers are held accountable for their mistakes.
You don’t have to navigate this complex legal process alone. Book a free consultation with The Oshman Firm today, and let us help you explore your legal options.
