Erb’s Palsy Compensation

Erb's palsy is a paralysis of the arm. It can be caused by shoulder dystocia during a difficult birth. It is also known as brachial plexus palsy and Erb-Duchenne palsy.

Laura Reaney

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Erb's palsy is a paralysis of the arm. It can be caused by shoulder dystocia during a difficult birth. It is also known as brachial plexus palsy and Erb-Duchenne palsy.

One or two babies out of every 1000 are affected by Erb’s palsy. The condition is peculiar to each baby that is affected by it. That means that the paralysis of an arm can be partial, or it can be complete.

When Erb’s palsy occurs as a result of medical negligence, it’s possible for the child’s parents on behalf of the child (or the child themselves on attaining the age of 18) to make an Erb’s palsy compensation claim. Erb’s palsy claims are a type of birth injury claim.

Spencers solicitors team of medical negligence solicitors have extensive experience of birth injury compensation claims.

How is Erb’s palsy caused?

It is caused by an injury at birth that most commonly occurs when the baby’s shoulders become stuck in the birth canal after the head has been delivered. This is known as ‘shoulder dystocia’.

In an attempt to free the baby’s shoulders, the head or arm can sometimes be pulled too vigorously by the medical team.

When the force that is applied is excessive it can result in stretching or tearing of the brachial plexus nerves, causing damage to them. This damage may affect from one, to all five, of the brachial plexus nerves that supply movement and feeling to an arm. This paralysis of the arm is what is known as Erb’s palsy.

What are the symptoms of Erb’s palsy?

There can be a range of symptoms, including:

  1. The arm remaining limp and held against the body, due to the elbow not bending properly.
  2. Muscular atrophy (wasting of the muscles).
  3. Weakness, limpness or total paralysis of the hand.
  4. Reduced ability to grip with the hand on the affected arm.
  5. Horners syndrome. This is an associated condition causing an eyelid to droop on the child’s weaker side to droop. The pupil in the associated eye may be smaller than normal.
  6. Torticollis. Another associated syndrome. The babyfaces away from their affected arm. They are unable to face forwards for any length of time.

Is there any treatment available for Erb’s palsy?

Early intervention can often ensure that the baby recovers from the condition partially or in full. Studies have indicated that the rate of complete recovery is between 80% and 96%, particularly if there is improvement within the first two weeks after birth.

Forms of treatment for Erb’s Palsy include:

  • Occupational therapy
  • Physiotherapy
  • Nerve Grafts
  • Hydrotherapy
  • Tendon or muscle release

Some babies will recover naturally, within 1 to 2 years. For others surgery of the brachial plexus can improve conditions that have shown no signs of recovery in the first three to five months after birth. A few children are left with permanent disability, but this is thankfully fairly rare.

When might there be a claim for Erb’s Palsy as a result of medical negligence?

Not all of the circumstances in which Erb’s palsy occurs are the result of medical negligence taking place. For a successful compensation claim to be made, it must be proved that there was medical negligence in the management of the pregnancy and/or delivery of the baby.

Claims for compensation therefore usually fall into one of two categories:

1. A failure in the management of the pregnancy e.g. by failing to arrange for a caesarean section birth, in cases where shoulder dystocia may have been expected to occur. Possible factors that should have rung alarm bells about the possibilities of shoulder dystocia happening would be:

  • If the expectant mother had previously given birth to a baby that had suffered shoulder dystocia. This would be an indicator that the likelihood of it happening again in the future, would be high and that a caesarean may be the advisable option as a means of delivery.
  • Where the mother to be has a small pelvis, there is a greater risk of the baby getting stuck. An estimation of the anticipated size of the baby should be considered alongside the potential restrictions caused by the smaller than average pelvis size of the mother. If after taking all factors into account, the risks of a normal birth taking place are too low, then there should be a discussion about with the mother to advise her that a caesarean is an advisable option.
  • Where the baby is of an unusually large size, the prospect of shoulder dystocia is increased. It should be possible through proper foetal monitoring to establish the baby’s size and weight and to pre-plan whether a caesarean is likely to be considered necessary.
  • The expectant mother is obese.
  • The mother has diabetes (maternal diabetes often increases the risk of having a large baby).

Many Erb’s palsy claims succeed on the basis that the expectant mother was not in a position to give informed consent to proceed with natural birth, because she had not been made fully aware of the risks of doing so, given also that there was an alternative, namely to undergo a caesarean procedure.

Another way of expressing this would be to say that the standard of medical care that she received was not what was to be expected of reasonably competent medical professionals.

2. Negligence in the handling of shoulder dystocia as a result of failure to follow established procedures.

  • Birth assistance tools such as forceps or a vacuum extractor being used with excessive force, causing damage to the brachial plexus nerves
  • When an emergency situation arises during the course of delivery, it becomes imperative to complete the birth procedure very quickly. This rush to deliver the baby quickly can sometimes lead to mistakes being made, which in turn lead to the brachial plexus nerves becoming stretched or torn.

There is a recommended procedure for trying to avoid shoulder dystocia. This is known as the McRoberts procedure. To carry out this procedure properly requires there to be three and possibly even four members of the medical team, present to assist. If the recommended procedure is not competently performed, and Erb’s palsy is caused by any subsequent shoulder dystocia that results from the failure to follow the procedure, then this may lead to a medical negligence claim being made.

Why choose Spencers solicitors to handle an Erb’s palsy case?

Shoulder dystocia can be caused without there being any medical negligence present. Therefore, not all cases of Erb’s palsy are the fault of medical professionals.

Erb’s palsy claims can become extremely complex matters to deal with. Detailed consideration of the mother's medical records will be neccessary. Medical reports will be prepared by experts in obstetrics and Erb’s palsy. Witness evidence from baby's mother or expectant father will need to be taken.

All of this points to the fact that finding the right Erb’s palsy claim solicitor, is extremely important to the prospects of bringing a successful Erb’s palsy clinical negligence claim.

At Spencers we are not only experienced medical negligence solicitors but experienced birth injury claim solicitors.

We are able to focus immediately on the important aspect of working out precisely what happened and why.

We are experts in gathering the right medical and witness evidence.

What Compensation is payable for an Erb’s Palsy injury claim?

The type of compensation that will be payable in the case of a successful claim being made, will depend on the severity of injury to and the needs of, the child. However, some examples of the type of damages (compensation) that we will be able to claim are:

  • Substantial damages for pain and suffering (injury compensation)
  • The costs of any forms of treatment that will aid recovery and/or rehabilitation
  • The cost of any future surgery
  • Potential loss of future earnings (if the condition is likely to be long-lasting or even permanent)
  • An amount to compensate the claimant for being handicapped on the open labour market (because their disability prevents them from doing certain types of occupation)
  • The cost of future care and assistance
  • Aids and equipment
  • Adaptations to the home – the type and extent of adaptation t will depend on the extent of disability and the kind of assistance that will be needed on a day to day basis.

How much compensation can be claimed in an Erb’s palsy case?

We have mentioned previously that Erb’s palsy affects every sufferer in a different way and to a different extent. This makes it impossible to generalise about the amount of compensation that it might be possible to receive from making an Erb’s palsy claim.

We keep all our clients advised as to progress each step of the way, once a claim has begun. When we have the necessary medical and other evidence in support of a claim, we’ll be able to start providing advice on the amount of compensation your child might expect to receive.

How long do I have to start an Erb’s palsy claim?

The normal position with medical negligence claims is that you have three years from the date that the negligence occurred to start your claim OR three years from your date of knowledge i.e. the date when you realised that your injury was significant and that it resulted from the act or omission of a medical professional.

However, in claims involving children, the position is different. The starting date for limitation will commence on the child’s 18th birthday and will last until they reach their 21st birthday. Accordingly, the child has until they are approaching the age of 21 within which to start an Erb’s palsy claim.

However, where possible it is advisable to start the claim as soon as possible. In most cases, claims will be started at a much earlier stage on behalf of the affected child, by their parent(s) or guardian(s).

How can I fund an Erb’s palsy compensation claim?

We will in most cases be able to offer you the benefit of a No Win No Fee agreement. That means if the claim doesn’t succeed, you’ll have nothing to pay. That way you can pursue the claim without worrying about expensive legal fees.

Call Spencers Solicitors now for a free initial consultation by phone on 08000 93 00 94. Alternatively, you can contact us online, leave your details and a member of our medical negligence team will call you straight back.

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