Virginia Lawyers Weekly reports today on a $1,000,000 settlement in a medical malpractice Erb’s palsy case. The interesting thing about this case is that the injuries occurred during the course of a cesarean section. The father of the child claimed he witnessed the obstetrician applying excessive force to the fetal head after the baby’s shoulder did not clear. Plaintiff’s expert testified the doctor failed to make the incision large enough to extract the baby’s head and then inappropriately applied traction while the head was still entrapped. Fortunately, the child was promptly diagnosed with a brachial plexus injury that was confined to the child’s neck (at C5/C6). After surgery, the child has a good prognosis for a functional arm and hand.
Shoulder dystocia cases are not rare but this is the first case I have seen or read about where the OB/GYN’s malpractice was the failure to make a large enough C-section incision. There are many claims that involve the failure to provide a c-section in the first place.
These injuries tend to occur with babies that are much larger than typical or, as is frequently the case, when the mother has diagnosed or undiagnosed gestational diabetes (or is just a diabetic). The big thing with this problem is seeing the problem before it manifests itself.
How Do You Know Whether a Brachial Plexus Injury Is Permanent?
Often, we get brachial plexus cases that appear to be very viable claims that fall apart because the injuries resolve. This is not a miracle. Thankfully, many of these injuries resolve over time. I met with a family last week in a shoulder dystocia case where I feel very hopeful the child will have a full recovery. (We will wait and see and hope.) Only five to twenty percent of brachial plexus birth injuries are severe enough to result in permanent damage. Sometimes the nerve damage caused by the natural forces of labor is only temporary. If this happens, this injury likely occurred in the absence of medical malpractice. How long until you know? When a brachial plexus birth injury resolves completely within two years, you should get a pretty good sense of where the injury will go. Before that time, the only other way to be sure is to do an MRI to see if there is a complete nerve root avulsion. This means a detachment of a nerve root at the point it exits the spine.
How These Cases Are Defended?
Defendants argue that even in normal and nontraumatic births strong uterine contractions, the forces of maternal pushing can compress and stretch the brachial plexus. Defense lawyers claim mechanical factors on the brachial plexus are not created solely by the delivery operator during the birth process. They try to jump on a few reports of brachial plexus injury that was ostensibly without a challenging delivery.
They throw lots of spaghetti in the way that endogenous forces like uterine contractions and maternal expulsion efforts generate forces greater than those applied with traction on the head during shoulder dystocia deliveries.
The flaw is the lack of peer-reviewed literature to support these claims in a meaningful way. It is always “I know a guy this happened to” type of a thing.
Defense lawyers also try to hand their hat on the fact that neither shoulder dystocia nor brachial plexus injury can be predicted reliably. But what does that tell us exactly? We don’t know when a doctor is going to commit medical malpractice.