Erb's Palsy Law Blog

Recently, I received a phone call from a parent of a youngster who had a significant Erbs impairment. The child was twelve years old, and he had a number of the stigmata of Erbs including a contracted elbow, winged scapula, internally rotated shoulder, and poor range of motion so that he could not comb his hair with the weak hand, and he was unable to compete many school athletics. It was a heartbreaking call because this parent had called our office too late to sue the people who caused this.

In every state, there are laws that limit the time allowed for bringing a lawsuit. These laws are called statutes of limitation or statutes of repose. The purpose of these laws is to allow people who commit negligent acts to rest easy after a length of time, because no one has brought any action against them. In NY, for example, people cannot sue a doctor after two and a half years have gone by after the negligent act. Children have extra time, but never more than ten years. A twelve year old, then, has gone beyond the NY statute of limitations and cannot sue for injuries that happened at birth. It is too late.

But, you may say, we didn’t know we had a suit. We didn’t know there was a time limit. In NY “we didn’t know” is no excuse, and the statute of limitations is absolute. In other states, the excuse may work. There is a “discovery” rule in N.J., for example, but it has harsh limits, and only a skilled lawyer can tell you if you can use that excuse to extend the statute. And N.J. has different rules for adults and children. The limit is shorter for the adults, for example. Even in NY, the rules are different if a municipal hospital is involved. The statutes for municipal hospitals in NY are very short, and require something preliminary called a Notice of Claim.

So, what should a parent of a child who has been injured at birth do? Get a lawyer, obviously. Parents are in no position to sit back and wait to see how things turn out. If they do so, they risk missing one of the many time limits that can deprive a child of his or her access to justice in the courthouse.

The fundamental problem of proof in cases of Erbs Palsy is that there are defense experts who believe (or at least say they believe) that Erbs Palsy is a naturally occurring phenomenon. Then, if the doctor simply says he did not pull to get a stuck baby out, while the mother and father say he did pull on the baby, the jury has to choose whom to believe. The doctor bolsters his position with lots of chaff about how experienced he is, and how an experienced doctor would never pull like that, and before you know it, the child loses.

That’s really too bad, because the defense is a myth. Erbs palsy just does not happen by itself. It isn’t just that it takes adult force to cause this injury, it’s that the injury also takes a widening of the angle between the head and the shoulder, with force. The nerves have to be pulled across that angle to be stretched enough for fibers to tear. This is a stretch injury, not a compression injury. You can’t tear things by squeezing them. But, in a contest between the parents and the doctor, folks will tend to believe the doctor. That’s just the way it is. Doctors command more respect than other folks, so they are likely to be believed, even when they are not telling the truth.

So, how do we prove that the doctor pulled too hard, and pulled down on that baby’s head while he/she was stuck with the shoulders still inside? How do we show the doctor’s denials are false? It takes a second fact.

I have previously spoken about fundal pressure. When we can show fundal pressure was used during a shoulder dystocia, we have an example of the needed “second fact”. To remind the reader, shoulder dystocia means the shoulders are stuck inside the mom, while the head has been delivered. Pushing from the very top of the mom’s belly, near the breastbone is called fundal pressure, and it is not allowed. Fundal pressure during a shoulder dystocia will merely jam the shoulders in harder against the bones that are holding them back, making the delivery harder, and making the doctor pull even harder to get the baby out. Since nearly everyone admits fundal pressure is malpractice in this circumstance, if the nurse says it was done, or if the record says it was done, then you have your second fact.

Other examples of what I call the second fact: Videos of the pulling; nurses saying the doctor pulled; nurses or records recording shoulder dystocia when the doctor denies there was a dystocia; conflicts between the obstetrical record and the newborn record (written by different providers, of course); conflicts with other records like the labor and delivery log . These “second facts” will be discussed in later postings.

I recently came across a letter written to the editor of one of the obstetrical journals criticizing the poor science in one of its articles. The letter pointed out that the premise of the article was that there must be some other cause of Brachial Plexus injuries (Erbs Palsy) because shoulder dystocia was only reported about 50% of the time when these injuries occur. It pointed out that some of these injuries occurred precisely because the obstetrician failed to realize there was a dystocia, and just pulled. And, even worse, oftentimes the obstetrician purposely failed to record that there were stuck shoulders, in the hope his failure to clear them safely wouldn’t be recognized. The writer of that letter pointed out that the authors of the article, as much as the doctors who failed to report the shoulder dystocias, were doing the public (patients) a disservice by hiding the truth. Moreover, by creating this bad science in an effort to shield the doctors who injure babies, they impede the learning process. They are, in fact, preventing medical science from working on real prevention by suggesting the injury is unpreventable.

A baby is born. She is not moving her right arm. The nurse records that the doctor was twisting the head; that there was a shoulder dystocia. She has thirty years experience, and knows a shoulder dystocia when she sees one. The parents say the obstetrician was pulling hard to get the baby out, because she got stuck. The doctor says he never twisted or pulled the head; there was no shoulder dystocia. He doesn’t know why the baby has Erbs Palsy, but perhaps it came from strong maternal contractions in the birth canal. Do you believe him?

Fundal pressure is force applied to the top (nearest the breast bone) of the mom’s pregnant belly, above where the fundus of the uterus is. The idea of fundal pressure is to help the mom push out the baby, kind of like how you can squeeze toothpaste out of the tube by rolling the tube from the bottom. Fundal pressure is absolutely contraindicated when a baby has gotten stuck during delivery, with its head born and the shoulders hung up. Remember, when the shoulders hang up like this, it is called a shoulder dystocia. According to William’s Obstetrics, there is a 70% chance of injury if fundal pressure is used to try to relieve a shoulder dystocia. The theory is that applying fundal pressure will merely jam the shoulders even tighter against the mom’s pelvic bones, where they are already hung up. This in turn will add to the force necessary to get the baby out, and the obstetrician or midwife will have to pull even harder to deliver the baby.

Still, we see instances where fundal pressure was used in exactly this situation. Can doctors not know that fundal pressure is wrong? What’s going on?

Remember, we lawyers see the bad outcomes, not the happy ones. So, perhaps the obstetricians have learned that many babies are able to withstand these extra forces placed on their brachial plexis, and they can get away with these risky techniques.

The primary cause of the injury to these nerves has always been pulling (downward) on the baby’s head during dystocia, so that the nerves are stretched between the head and neck beyond their elastic limits. The defense goes something like, well, but how hard is too hard? The answer has to be that there must be no pulling down on the head once shoulder dystocia is recognized. Nevertheless, in court, an accusation of “he pulled too hard” vs. “he did not pull too hard” deteriorates into an unresolved question of fact. Thus, it is better to know what else was done wrong to add to the evidence that excessive force was used. Fundal pressure is one of the factors to look for to support a claim that excessive force was used.

There are a number of medical writers who publish theories about the cause of Erbs Palsy who say that this injury happens in utero, before the baby’s head is delivered. They suggest that the mother’s own uterine contractions and pushing provide the force that damages the brachial plexus. There are a number of versions of this “endogenous forces” model. Some of them suggest the injury occurs when the shoulders are compressed against the mother’s pelvic bones during forceful contractions. Others suggest some kind of recoil stretching when the baby is forced part-way out, then pulls back when the contractions relax. There are other versions of this nonsense. Natural mother’s forces ramp up smoothly, and they are applied evenly from all sides of the womb. There is no unbalanced component that can stretch one shoulder’s nerves, but not the other side; there is no stretching component at all, and since the injury is one of pulled, not pushed nerves, uterine forces can’t be the culprit. Also, there is no room inside the mom to pull the head out of a straight plane, and no way to widen the angle between the head and shoulder, which is how this injury always happens.

Want to feel what it feels like? Take your own head and pull it to the side, toward the shoulder. Feel the burning sensation? You are stretching the brachial plexus. Don’t overdo it! This is a stretch, not compression injury. Brachial plexus injury can only happen when an obstetrician or midwife pulls the baby’s head like this.

All of the defense theories are based on retrospective “studies” of hospital records of births in which they find no notes referring to difficulties in getting the baby out. They find that in roughly fifty percent of the deliveries, there is no record of shoulder dystocia (stuck shoulders), though the babies have brachial plexus injuries. And they never see a record in which the doctor actually writes that he/she pulled hard on the baby’s head to clear a stuck shoulder. From this statistic the authors of these articles conclude that there must be something else at work causing all these brachial plexus injuries when there was allegedly no stuck shoulder or difficulty in getting the baby out after the head was born.

Doesn’t that strike you as ridiculous? Can you think of a good reason why the doctors would purposely avoid noting shoulder dystocias, difficult deliveries, or pulling on the baby’s head? Since they aren’t delivering the baby with a pen in their hands, obviously, they are writing these records after they have seen the newborn isn’t moving his/her arm. Now, don’t you think they would be very reluctant to describe how they pulled on the baby to get it out, knowing that they are going to be sued (and rightly so) for crippling the child? The other reason these records may not contain evidence of shoulder dystocias is that some of these injuries occur precisely because the doctor failed to recognize the condition, so they pulled the baby out without regard to the amount of force they were using, oblivious in their ignorance. Even the authors of these articles admit that there may be some of these unrecognized stuck babies in their studies. Part of the trouble is that pulling on the baby’s head will work, in the sense that it will get the child delivered; it’s just that the child will have a brachial plexus injury in the process. Whereas using the approved maneuvers free the shoulders both delivers the baby and doesn’t injure the brachial plexus.

Today’s encouraging news is that Dr. Robert DeMott was precluded from testifying in a Rhode Island case. DeMott is a leading advocate for the theory that permanent Erbs palsy can be caused merely by strong maternal contractions during labor, without any additional force from the delivering obstetrician. DeMott and his partner, Sandmire, have published a number of articles containing various versions of this “forces of labor” theory, and it provides a basis for defense lawyers to defeat the claims of injured babies who have been crippled by doctors who pull on their heads during delivery.

According to the reports of this happy development, Dr. DeMott stated that his “research” had demonstrated indirect evidence through statistical models that injury to the brachial plexus (which causes Erbs paralysis) occurred prior to delivery of the baby; however this evidence created only an association, and could not be said to be the cause of the injury.

Apparently, this uncertainty about causation was sufficient for the Rhode Island court to say he could not speculate on the cause, and precluded him from testifying as an expert.

This finding may have far-reaching effects because it may be considered judicial recognition that the theory of maternal forces is junk science, promulgated by doctors to avoid responsibility for brachial plexus injuries.

When a baby is diagnosed with Erbs Palsy, the first consideration should be whether this is a permanent injury. It is impossible to tell whether a newborn with a limp arm will make a good recovery, and it is true that a very high percentage of these babies will be fine by the age of six months. On the other hand, by the time a child is six months, if there is significant persistent loss of function in the arm, then it starts to look like a permanent injury. By the age of one year, a baby is considered to be permanently injured if he/she is still showing significant weakness in the arm.

The medical literature is reporting mounting evidence that the mechanism of a transient injury is different from a permanent injury. Obstetricians have been publishing articles for several years which suggest that Erbs Palsy canoccur “innocently” due to the forces of the mother’s contractions. The studies suggest, however, that these “endogenous” forces do not cause the permanent form of the injury.

So, what we have known for a hundred years is still true. Permanent Erbs Palsyis caused when the delivering doctor (or midwife) applies excessive force during delivery, widening the angle between a baby’s head and shoulder. It is still the only way it happens, and no other explanation has any validity. Literature suggesting otherwise is based on flawed interpretations of the data, which can be looked at in a later post.

So, if a baby has a permanent Erbs, someone pulled too hard. Don’t let anyone tell you different.

Preston Douglas

Preston J. Douglas, a New York City medical malpractice attorney and partner in Gurfein Douglas LLP, represented the child. At the time of the delivery the doctor directed the nurse assisting him to apply “fundal pressure” or pressure at the top of the stomach. The made the baby’s stuck shoulders even more difficult to delivery and caused the doctor to pull too hard to delivery the baby. This excessive pulling caused nerve damage to the nerves the control the arm and left the baby with Erb’s Palsy.