Plaintiff settles Erb’s palsy case 28 years after delivery


This is an unusual case. Litigation doesn’t usually take decades, but this case went through multiple plaintiffs’ attorneys and sat quiet on the court’s docket until the court was clearing old cases and reexamined it.


Mr. Kaplan is a partner at Aaronson, Rappaport, Feinstein & Deutsch, LLP, specializing in medical malpractice defense and healthcare litigation. He welcomes feedback on this column via email to


In 1985, a woman who was a 27-year-old G2P1 received prenatal care during a routine and uneventful pregnancy. She had given birth to a 9 lb 10 oz boy via vaginal delivery the year before. During the pregnancy at issue, she gained 35 lb. There was apparently no estimation of fetal weight during prenatal care. Estimated date of delivery was December 27, 1985.

The mother presented to a New York City hospital at 9 am on December 29 with complaints of contractions. Membranes were intact and the cervix was 2 cm to 3 cm dilated and 80% effaced. The fetus was in the vertex presentation at -2 station. The mother was discharged because it was early labor, but she returned almost immediately and was admitted to the labor floor.

A repeat pelvic exam revealed the cervix to be 3 cm to 4 cm dilated and 100% effaced. The fetus was in vertex position and -1 station and the membranes had spontaneously ruptured. Internal electrode was applied and fetal heart rate (FHR) was regular at 136-140 beats per minute (BPM). At 10:30 am the resident’s exam revealed the cervix to be 6 cm dilated. FHR remained stable at 140-150 BPM. At 11 am the patient was seen by the chief resident. The patient was having strong contractions and complaining of pain. She had a good fetal heart tracing. The cervix was 6 cm to 7 cm dilated and edematous. At 11:30 am, the patient was feeling rectal pressure and an exam revealed full dilation. The fetus was in right occiput anterior position.



At 11:55 am, the chief resident delivered the head after a midline episiotomy. Shoulder dystocia was encountered. The episiotomy was extended through the rectal mucosa. The patient was placed in a “knee-to-chest” position and the junior resident exerted supra-pubic pressure. The attending physician was called in to assist. The shoulder girdle was difficult to rotate and the posterior shoulder could not be delivered. After a corkscrew maneuver, the anterior shoulder was dislodged slowly from below the symphysis and the anterior shoulder was delivered. Delivery of the posterior shoulder was followed by the rest of the body at 12:05 pm.

Neonatal staff documented that the head was delivered “and it took 15 minutes to deliver the shoulders which appeared stuck.” The baby was handed to the pediatrician in attendance. The infant weighed 11 lb 3 oz. Apgar scores were 0, 0, and 2 at 1, 5, and 15 minutes, respectively.

The baby was immediately intubated and staff began external cardiac massage. The first heartbeat was heard at 15 minutes. In the neonatal intensive care unit the infant was immediately placed on a respirator. Arterial blood gas measurements were pH 7.50, pCO2 26, and PO2 35. Examination of the extremities revealed generalized multifocal convulsions and a “completely floppy” left upper extremity. A neurological exam revealed the infant to be alert with equal and reactive pupils. Moro reflexes were present. The child was noted to have a probable left Erb’s palsy.

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(The statute in New York state calls for physicians to keep patient records for least 6 years, or until 1 year after a minor turns 18. However, many providers keep their records longer. This lawsuit commenced in 1994 or 1995-although it lingered on the court docket for years-and the records were on microfiche at the hospital.)


The plaintiff alleged that her son had sustained a left brachial plexus injury resulting in Erb’s palsy, restricting range of motion and strength on his left side. The plaintiff claimed that as a result of her now-adult son’s injuries, he was restricted in activities of daily living and in earnings ability and potential.




Because the delivery had taken place 25 years before her deposition, the mother did not have good recall of the events. She recalled the resident performing the delivery exclaiming that the infant was large and advising her to “fold her legs back while pressure was put on her pelvis.” She recalled the infant was delivered vaginally and that he was a big baby, although she could not recall his exact size. The mother recalled that her son had difficulties using his left shoulder and believed that his collarbone was injured during delivery. The son underwent physical therapy once or twice a week for the first year of his life, but it was terminated because “he didn’t need it anymore.”

The mother conceded that her son’s pediatrician told her to take him for additional therapy before he began school but that she never did. She later testified that he was evaluated but that physical therapy was not approved. The infant began crawling at 8 or 9 months and standing at approximately 1 year. Special-needs classes were recommended when he was 5 years old, but the mother did not put him in those classes.

Her son took regular physical education courses in high school although he was unable to participate in certain activities such as weight lifting. He graduated from high school on time and worked as a part-time security doorman. His mother testified that she had to help him dress and that he was unable to carry anything in his left arm.

The son, then 24 years old, confirmed that he was a part-time doorman and a high school graduate. He indicated that he could not extend his left arm straight or above his head and that he could not throw or catch a ball. He confirmed that he had never received any occupational, physical, or speech therapy. He also confirmed that he was right-hand dominant.

The plaintiff chose only to depose the attending physician who was called in emergently during the delivery. She testified that when she arrived in the labor and delivery room, she found the patient in the McRoberts position and the infant’s head at the perineum, though she could not state with any certainty how long it had been there by the time she arrived.

The attending physician recalled that she attempted to deliver the infant by the posterior shoulder and by attempting a “corkscrew” of the anterior shoulder. She could not gain enough leverage, so the resident, who had smaller hands, rotated the infant and was successful in delivering the anterior shoulder and thus the rest of the body.



The attending physician refuted the plaintiff’s suggestion that there was significant weight gain during the course of the pregnancy that should have indicated a large baby. Rather, she claimed, the mother gained 35 lb, which would not predict macrosomia.

The mother had a tested pelvis by virtue of previous vaginal delivery of a 10-lb infant, and she was clinically assessed upon presentation by the resident. In 1985, ultrasound was not considered reliable in estimating fetal size and was not the standard of care. Clinical evaluation and history were the most accurate means by which to estimate fetal weight.

The attending physician confirmed that the patient was appropriately monitored during the course of labor and delivery via pelvic exam and external FHR monitoring, and that the strips were unconcerning. She refuted vigorously the suggestion that any excessive lateral traction was placed on the infant’s head at any point during the delivery. All the maneuvers attempted in her presence were rotational rather than lateral. She did concede that the length of time the infant’s head was at the perineum could have contributed to perinatal asphyxia.

Although he was then an adult, the plaintiff’s son was evaluated by a pediatric neurologist retained by his attorney. The son claimed that he had difficulty dressing himself. He also claimed that he had trouble manipulating small objects and was unable to lift packages as part of his duties as a doorman. This physician found that his arm was internally rotated with a bent elbow and scapular winging on the left. Passive and active ranges of motion were decreased on the left side. The left arm was moderately weaker than the right as well. The neurologist’s clinical impression was that the patient had a brachial plexus traction injury involving the 5th, 6th, and 7th cervical nerves of the left brachial plexus with incomplete recovery, internal rotation with contracture, and an elbow contracture.

It was his opinion that “permanent brachial plexus injury can only occur when there has been nerve root avulsion or nerve rupture secondary to lateral movement of the head resulting in stretching or tearing of the nerves of the brachial plexus.”

Our team had the son examined by another pediatric neurologist who was astonished-in light of his Apgars at birth and the almost textbook picture of hypoxic ischemic encephalopathy after delivery-that he was not brain damaged. This neurologist confirmed much of the plaintiff’s examining physician’s report, including the length and strength discrepancies between the left arm and the right. She indicated that the contracture in his shoulder and arm might hinder him in rolling bags behind him or lifting them overhead, but not in carrying them at his side. She did feel that surgery could be performed to release the capsule or the tendons. She noted that the parents should have taken measures to improve their son’s condition through orthopedic evaluation or physical therapy.

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Once the case was on the trial calendar, the plaintiff and the defendants entered into court-ordered mediation. The plaintiff (who was now the son himself) had “pie-in-the-sky” expectations that he would be awarded $1 million or
$2 million. It took several sessions of mediation to convince the plaintiff and his attorney that they could lose the case and that a jury verdict in that range was unlikely in this conservative venue.

Our team did have to concede that the son had a moderate Erb’s palsy, so there was very little to contradict in his expert’s evaluation. Furthermore, in New York in 2012 there was precedent for the proposition that “natural or maternal forces of labor” is a “novel theory” to explain brachial plexus injury cases and not supported by the literature. This has emboldened plaintiffs’ “experts” to contend that the only proven cause of a permanent brachial plexus lesion is the application of excessive force in attempting to deliver the impacted shoulder. This is a cause for concern among the defense bar, particularly in this case, in which there was documentation that the infant was “hung up” for 10 to 15 minutes before the dystocia could be relieved. Ultimately, the case settled before trial in 2013 for $450,000.


This is an unusual case. Litigation doesn’t usually take decades, but this case went through multiple plaintiffs’ attorneys and sat quiet on the court’s docket until the court was clearing old cases and reexamined it. The court denied multiple attempts by the defense team to dismiss the case for lack of prosecution. Courts will often bend over backward to preserve an infant’s case, even if the “infant” is now an adult. Although the plaintiff was pursuing only the brachial plexus injury, the defense team was reluctant, in light of the neonatal record, to expose the hospital to a potential “brain-damaged infant” claim at trial.

In light of the difficulties encountered by the residents during the delivery, the amount of time that elapsed between delivery of the head and the shoulders, the unexpected size of the infant, the need for emergent consultation to accomplish delivery, and the indisputable permanent injury suffered by the infant, we felt this was a case better settled than tried.

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