At approximately 2 cases per every 1,000 births, brachial plexus injury is one of the most common types of birth injuries. Babies weighing over nine pounds, babies born to a parent with a small pelvic opening, and babies born to a parent who has developed gestational diabetes are at highest risk for this injury. However, brachial plexus birth injuries can also result from medical malpractice or negligence.
Understanding Brachial Plexus Injuries
The Mayo Clinic calls the brachial plexus “the network of nerves that sends signals from the spinal cord to the shoulder, arm, and hand.” When injured, the connection between the spinal cord and the arm, wrist, or hand can be compromised or even broken. Damage to the brachial plexus can occur if the nerves are stretched, pressed, or torn within the network or at the root near the spinal cord. The most common symptoms of a brachial plexus injury are a burning or stinging sensation, weakness in the shoulder, arm, or hand, partial loss of feeling in the shoulder, arm, or hand, and, in severe cases, partial or complete loss of control over the shoulder, arm, wrist, or hand.
In cases where the root of the nerve is torn from the spinal cord (also called an avulsion), 10-20% of babies develop Horner’s Syndrome. Symptoms include a drooping eyelid, decreased size of one pupil, and decreased sweating on the affected side of the face.
Brachial Plexus Injuries Are Birth Injuries</h3>
The size and position of a baby in utero are key to determining a child’s risk for a brachial plexus injury.
Large babies delivered vaginally are at higher risk for brachial plexus injuries. The Cleveland Clinic reports shoulder dystocia, when the shoulders get stuck behind a birth parent’s pubic bone during labor, occurs in roughly 1% of babies weighing up to 8 lb. 13 oz. As a baby’s weight increases, so does the rate of dystocia, to about 5%-9%. Dystocia often leads to injury of the brachial plexus.
Babies born in the breech position (emerging feet or buttocks first) and babies birthed after prolonged labor are also at higher risk for brachial plexus injury. In these situations, it is more likely a baby’s head may be pulled or stretched away from the shoulder or the shoulders dangerously compressed.
In some cases, brachial plexus injuries result from incorrect or excessive manual force applied by a doctor during delivery or incorrect or excessive use of a vacuum or forceps during delivery.
If a doctor believes your baby is at risk for a birth injury, they may choose to perform a Cesarean section (also referred to as a “C-section”) instead of allowing a vaginal birth. C-sections are major surgeries and pose their own risks, but they are generally considered safe for the birthing parent and child and radically reduce the potential for birth injury.
Brachial Plexus Injury Recovery
Your healthcare providers can order imaging if you or your doctor suspect a brachial plexus injury. This includes an X-ray (if you suspect your baby has an injured or broken collarbone) or a CT scan (photographing your baby’s bones, blood vessels, and soft tissues). This machinery, paired with a dye injection, will provide the best view of the baby’s nerve structure and can identify injury to the brachial plexus.
Many babies born with a brachial plexus injury heal on their own and regain most or all the function in their shoulder, arm, wrist, and hand. Often, physical or occupational therapy is recommended to assist in recovery. Only approximately 1 in 10 babies requires surgical intervention.
Medical Negligence and Brachial Plexus Injuries at Birth
All doctors are responsible for providing patients with a professional standard of care. In other words, doctors must provide the same level of care that any other competent, similarly trained doctor would in the same situation. For example, if your doctor is a licensed obstetrician, they must act in the same way any other trained would in those particular circumstances.
Your doctor is responsible for identifying the possible risks that labor and delivery present to you and your baby, including any factors that could result in a birth injury. They are also responsible for relaying those risks to you and providing a course of action to keep you and your baby safe. Failure to meet this standard of care constitutes medical negligence.
Medical negligence becomes medical malpractice when the doctor’s action (or inaction) worsens a patient’s condition. This includes failing to diagnose a medical issue, administering incorrect medications (or dosages), taking action that causes complications, or anything that generally causes the patient injury.
For example, if a doctor acknowledges that your baby is too big to be delivered vaginally but delays performing a C-section until a vaginal birth is unavoidable, and subsequently, your baby suffers a brachial plexus injury during the birthing process, the doctor could be held responsible for medical malpractice.
Your Rights and Options
Brachial plexus injuries can cause long-term health issues, as well as emotional and financial trauma. If your baby suffers a brachial plexus injury during birth due to medical malpractice, you have options.
Sue the Healthcare Provider
Medical malpractice lawsuits are filed against healthcare providers for many reasons. According to Justpoint, a “medico-legal tech firm,” 26% of suits filed from 2017-2021 were related to “failure to diagnose,” while 28.5% were related to “improper treatment.” Other common causes are “misdiagnosis” and “failure to treat.”
Proving medical malpractice can be challenging. To establish medical malpractice, your lawyer will need to prove that the defendant, your doctor, failed to meet the standard of care and that your baby’s subsequent brachial plexus injury was a direct result of that failure. However, if you can convince a judge or jury of malpractice, you may be awarded compensation for medical expenses, lost wages, pain and suffering, and/or loss of enjoyment of life.
Remember, trials can last months or even years, and there is no guarantee a judge or jury will rule in your favor. If you have ongoing or outstanding medical bills, work or familial duties, or any other obligations that could stand in the way of your success in court, you may consider settling instead.
Settle Out of Court
Settlements take place outside of court. Both plaintiff and defendant must agree upon the option to settle and the actual dollar amount of the award. Doctors are often insured against medical malpractice, and a representative from the insurance company may also be present at settlement negotiations.
In a settlement, plaintiffs can negotiate for economic damages or costs that are easily tabulated, like medical expenses and lost wages, as well as noneconomic damages, like pain and suffering or loss of enjoyment of life.
Most states cap noneconomic damages to prevent plaintiffs from suing medical providers for outrageous or ruinous sums of money. This is true for cases that are settled, as well as cases that proceed to trial. In lawsuits against individual doctors, these caps generally fall below $500,000 (Texas: $250,000; California: $350,000; Illinois: $500,000). In most states, the cap is raised in cases involving a wrongful death.
Building a Strong Case
If you believe a medical provider is at fault for your baby’s brachial plexus injury, it is your responsibility to present a strong case against them. Remember, to prove medical malpractice, you must show the doctor was negligent and that negligence directly led to injury. Read Expertise.com’s article on Determining Medical Malpractice for a more in-depth explanation.
Just as treating your baby's injury as soon as possible is vital, it is equally important to begin the legal process as quickly as possible. Personal injury and medical malpractice cases have statutes of limitations. These statutes of limitations vary from state to state, so it is imperative you contact a lawyer as soon as you can.
Hiring a lawyer is the first step to building a strong lawsuit. Consult with an attorney experienced in medical malpractice or birth injury cases, and don’t be afraid to ask questions. What kinds of malpractice suits have they handled? How many cases have they settled? How many cases have they taken to trial? Won, lost? Do they think you have an actionable case? Are there any challenges specific to your case they foresee? How much will they cost?
Contact an advocacy group if you’re unsure how to find a lawyer. Organizations like the Patient Advocacy Foundation (PAF) and the National Medical Malpractice Advocacy Association (NMMAA) were created to spread awareness about medical malpractice, provide financial and case management resources to victims, and provide a community hub connecting victims of malpractice.
Navigating the Legal Process
Your attorney should lead the investigation. They can gather medical records, liaise with the hospital and defendant’s lawyers, depose witnesses, and solicit experts to support your case. It is important to seek out experts in birth injuries, particularly brachial plexus birth injuries, and to find medical providers in the same field as the defendant who can explain the standard of care and how the defendant did not meet it.
A good lawyer will prepare for trial, though you may never reach it. An overwhelming majority of medical malpractice lawsuits settle out of court. An experienced lawyer can also help you negotiate a settlement with the defendant. And if you do go to trial, an experienced lawyer will know how to navigate a courtroom.
Real-Life Case Studies
Law firm Block, O’Toole, & Murphy reports to have handled the largest brachial plexus birth injury case in the State of New York. The firm writes that the plaintiff, a baby boy, was medically qualified to be delivered via C-section (his birth weight was 11.1 lbs., and his mother had developed gestational diabetes). Despite the medical necessity of a C-section, and his mother’s request that she undergo a C-section, the doctor chose to deliver the baby vaginally. During labor, the baby’s shoulders caught on his mother’s pubic bone. In an attempt to free him, the doctor applied excessive force to the baby’s head and neck, severely injuring the brachial plexus (as well as causing a cephalohematoma and cognitive deficits due to fetal distress). The baby suffered upper arm paralysis that was eventually corrected through surgery. The case was settled out of court for $4,000,000.
Ken Levine Consulting highlights a similar case of a gestationally diabetic mother carrying a larger-than-average baby. The doctor failed to present the patient with the potential risks associated with a vaginal birth or the benefits of undergoing a C-section. During delivery, the baby’s shoulders got stuck on the mother’s pubic bone, and doctors applied excessive traction in an attempt to free him, causing permanent damage to the brachial plexus (as well as neurologic delays). The case was settled out of court for $2,000,000.
Attorneys Miller & Zois point to a 2018 case in Indiana in which a larger-than-average baby suffered a brachial plexus injury, resulting in paralysis of his left arm. His mother claimed the doctor “negligently administered Pitocin and improperly treated shoulder dystocia.” The case went to trial, and a jury awarded the plaintiff $2,000,000.
How To Choose the Best Birth Injury Lawyer for Your Case
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