Erb's palsy claims

Erb’s palsy or brachial plexus injury is caused when there is too much traction (pulling) on the baby’s head and shoulders during a vaginal delivery.

There is an increased risk of Erb’s palsy where the baby’s head is too large for the mother’s pelvis. This is known as ‘cephalopelvic disproportion’ and can happen if the baby is big or is incorrectly positioned, or the mother’s pelvis is small or unusually shaped. If there is a risk of cephalopelvic disproportion, the mother should be warned of the risk of Erb’s palsy during vaginal delivery and a caesarean section may be recommended. 

Erb’s palsy can occur if the delivery is obstructed by ‘shoulder dystocia’. This happens when the baby’s head descends into the birth canal but becomes stuck during delivery because one or both shoulders are wedged behind the mother’s pubic bone. The ‘stuck’ baby must be handled very carefully by the midwife or doctor to be delivered safely. Any excessive traction (pulling) on the head during attempts to deliver the baby can damage the brachial plexus nerves, resulting in Erb’s palsy.

Erb’s palsy can also be caused by pressure on the baby’s arms during a breech (feet first) delivery.

The type of Erb’s palsy injury depends on the extent of the damage to the nerves. Some injuries don’t fall neatly into one category. It is helpful to identify the type of nerve injury if possible, as this can help with treatment decisions. It also makes it easier to predict the child’s long-term outcome and how they will be affected by their injury in future.

The main types of nerve injury leading to Erb’s palsy include:

Neuropraxia

• the nerve is stretched but not torn;
• often resolves in a few months without treatment;
• better prognosis (long-term outlook) than other types of Erb’s palsy injury.

Neuroma

• more serious stretching of the nerves;
• may partially improve with time;
• leaves scar tissue;
• some long-term damage. 

Rupture or tearing of the nerves

• serious injury;
• needs nerve grafting surgery.

Avulsion

• the most serious form of brachial plexus nerve injury;
• the nerve is completely torn away from the spinal cord;
• surgery may be possible using healthy nerves from another part of the body.

Other types of injury caused by excessive force or traction (pulling) on the baby’s head during delivery include: 

• fractured collar bone;
• fractured humerus (upper arm bone);
• subluxation (misalignment of the bones) of the cervical spine;
• facial palsy (weakness/paralysis of the face muscles);
• phrenic nerve paresis (impairing movement of the diaphragm/feeling in the upper body).

Erb’s palsy affects each person differently, depending on which nerves have been harmed and the severity of the injury.  Long term disability can range from mild weakness or discomfort to total paralysis of the affected arm with permanent disability.

We have recovered compensation for clients with Erb’s palsy injuries including;

• total paralysis or weakness in one arm;
• numbness in one arm;
• arm position and movement restricted so that:
  •  elbow is held straight with the hand turned backwards (the ‘waiter’s tip’ position);
  • arm is held bent at the elbow and close to the body;
• smaller sized/differently shaped arm, from lack of muscle use;
• shorter affected arm from reduced bone growth (from lack of muscle use);
• limp hand or reduced grip strength;
• drooping eyelid and small eye pupil on the affected side (Horner’s syndrome);
• head can’t face forward for long and faces away from the affected arm (torticollis);
• arthritis in later life from abnormal wear and tear on affected joints;
• circulation, muscular and nervous development may also be impaired.

Each claimant’s compensation is calculated in accordance with mandatory rules based on their individual circumstances.

The law says that compensation for medical negligence should put the injured person back in the position that they would have been in if the negligence hadn’t happened, in so far as money can.

In a medical negligence claim, the amount of compensation depends on:

• the injury or disability that was caused by negligent care, and its severity;
• the cost of meeting the individual’s needs arising from that disability in the past, present and future, e.g. for care, home adaptations, therapies and equipment;
• the financial losses that were caused by the injury, such as loss of earnings;
• how long it is expected that the person will have the need or suffer the loss.

Our clients often benefit from different types of compensation, including:

• Interim payments – advance part payments of compensation, obtained as soon as possible after liability is established, to ease financial hardship and meet urgent needs, such as therapies, home adaptations and care. 
• Lump sum payments – most final settlements include a lump sum payment, either as the full compensation payment or to cover capital costs when combined with a PPO.
• PPO – periodical payment orders (PPOs) provide severely disabled claimants who have lifelong needs for care with the guarantee of lifelong, index-linked, tax free annual payments. PPOs can also be paid to cover other ongoing costs, such as case management or special educational placements.

Read more details on how much you can claim and what compensation can pay for.

If you think that you or a family member have received negligent medical treatment which has caused serious injury or disability, we recommend that you speak to one of our friendly, experienced clinical negligence team as soon as possible. You can contact us by telephone or by email. Your enquiry will be handled confidentially and preliminary advice in relation to pursuing a claim will be given free of charge.

Our solicitors will ask you to tell us  briefly what has happened, advise you about the limitation deadlines (time limits) which apply to your claim and whether we are able to help you investigate your claim.

Once our initial investigations have taken place, we will notify the defendant (hospital or doctor) of your intention to pursue a claim and invite them to respond, giving them an opportunity to admit liability, before court proceedings are issued.

If liability is admitted, we will enter judgment and apply for an interim payment as soon as possible to meet any urgent needs that you may have as a result of the negligently caused injury.

If liability is disputed, we will discuss with you the further steps that we need to take to progress your claim.

At all times our approachable, experienced clinical negligence lawyers will ensure that you are informed of any developments and understand the process. Your solicitor and our friendly support staff will always be available to discuss any concerns or queries that you might have along the way.

The duration of a medical negligence claim depends on the individual circumstances of the client’s case. The claim is likely to take less time to conclude where:

• liability is admitted by the defendant (NHS hospital or doctor);
• the injured person’s injuries have stabilised and their prognosis (long-term outcome) is clear;
• the injured person’s needs, the costs of meeting those needs and other financial losses are straightforward and easy to assess clearly.

Circumstances which make the claim more complex and therefore take longer to resolve include:

• where the defendant disputes that they were negligent or that the medical treatment given (even where admittedly negligent) caused the client’s injury;
• where the injured person is a child whose disability is expected to change with their growth and development over time;
• where multiple experts in different disciplines are needed to assess complex injuries and the likely long-term outcome.

An initial full or partial denial of liability by NHS Resolution or other medical defence organisation does not necessarily mean that the injured person’s claim will fail. In more than half of our successful cases in 2019, we overcame initial denials of liability by the defendant, resulting in settlements for our clients.(from making a claim page)

We work hard to secure early admissions of liability and substantial interim payments so that we can begin to alleviate financial hardship and provide essential care, respite, specialist equipment, therapies and home adaptations long before the claim has settled. With liability judgments secured and interim funds in place, the individual and their family are able to focus on rebuilding their lives whilst we concentrate on valuing and negotiating settlement of the claim.

Legal Aid – for brain injuries at birth

As top-rated specialists in cerebral palsy and other serious neurological disability claims, we have access to Legal Aid funding for eligible clients. Where the child’s case is funded by Legal Aid, the family can be sure that on the successful conclusion of the claim, their child will receive their full compensation without any deduction for legal costs. Where Legal Aid is available for a child with serious brain injury, we believe that it is in the child’s best interests for their claim to be covered by Legal Aid.

This form of funding is only available to those who have suffered a brain injury, such as cerebral palsy, at birth or within the first few weeks of life. The child must have suffered their brain injury in England or Wales, and they must not have substantial funds of their own. The parents’ finances are ignored for the child’s application.

 Legal Aid funding will only be given to a child where their claim is handled by a solicitor who has been approved as a specialist in cerebral palsy and child brain injury claims by the Legal Aid Agency.

 No win no fee – conditional fee agreement (CFA)

Where Legal Aid is not available, we act for clinical negligence clients on a conditional fee agreement (CFA or ‘no win no fee’) basis.  Just as the name says, no win no fee means that unless our client wins their case there are no legal fees for them to pay. If the case fails, we do not get paid for the time we have spent working on their case. Our client’s liability for disbursements (such as expert and court fees) and any entitlement the defendant might have to legal costs is paid by an after-the-event insurance policy.

CFAs make it easier for people to afford a legal claim because they do not have to pay any upfront charges. There are no legal bills along the way. They pay nothing if they lose their claim. If they win, nothing is payable until the end of the case.

 Legal Expense Insurance

If an injured person has legal expense insurance which was in place at the time that they were injured by medical negligence, their legal expense insurance policy might help with funding their claim. If you have legal expense insurance, you should let us know as soon as you are considering making a claim.

A medical examination is usually needed to assess our client’s injury.  Where our client has suffered multiple injuries or both physical and psychological injuries, they may need to be examined by specialists in each area. This is important to make sure that our client’s injuries are fully assessed and understood, so that they can be properly compensated.

If a medical examination is needed, we instruct the specialist and make the arrangements. We ensure that they have access to our client’s medical records and are aware of the background to the claim. The hospital or doctor against whom the claim is being made may also ask for our client to be examined by their medical expert.

If a baby, child or teenager under the age of 18 makes a claim for compensation for injuries caused by medical negligence, their claim is made on their behalf by a ‘litigation friend’. This is usually a parent or guardian. As the child’s solicitor, we have a responsibility to make sure that all decisions relating to the claim are made in the best interests of the child. To do this, we work very closely with the child’s family. Some important decisions, such as settlement agreements or the amount of money that is allocated to a child in a claim involving more than one claimant, must be approved by the court.

We are specialists in helping families obtain full compensation for children who have been very severely injured leaving them with permanent disability and lifelong specialist needs. [These claims are complex and must be handled by specialist solicitors.] Our expert children’s claims service includes a dedicated Court of Protection team who help our clients protect, budget and access their compensation via deputyship and trusts, and an SEN team to ensure that their special educational needs are met. Find out more about how we help families, children and teenagers with children’s claims.

In medical negligence claims, compensation for serious injury and disability usually includes a sum for the injury, and  sums to compensate for financial losses and the cost of meeting the needs that arise from the disability. Our expert knowledge and experience means that we recover maximum compensation in claims for catastrophic and life-changing injury.  We also ensure that our clients receive their compensation in the way that is best suited to meet their needs. In claims involving severe disability, compensation may include early interim payments, lump sums or lifelong, index-linked, annual payments.

Depending on our clients’ injuries, individual circumstances and needs, we can recover compensation to pay for:

• pain, suffering and disability;
• care (professional or provided by the family) and assistance;
• case management;
• therapies, such as:
  • physiotherapy;
  • occupational therapy (OT) ;
  • speech and language therapy (SALT);
  • psychological counselling;
  • pain management;
• assistive technology (IT);
• rehabilitation;
• home adaptations or additional costs of suitable accommodation;
• specialist equipment and aids;
• adapted vehicles, wheelchairs and additional transport costs;
• special educational needs;
• loss of earnings/pension;
• medical treatment and surgery;
• prosthetics (after amputation);
• Court of Protection costs;
• other losses and expenses arising from the injury.

Where medical negligence caused someone’s death, compensation may be claimed by the deceased’s dependants and on behalf of the deceased’s estate. Compensation in a fatal injury medical negligence claim can be paid for:

• the deceased’s pain and suffering and disability prior to their death;
• the deceased’s financial losses and expenses arising from their injury prior to their death;
• funeral costs;
• a statutory, fixed sum bereavement payment;
• a dependant’s loss of dependency on the deceased’s income;
• a dependant’s loss of dependency on other services provided by the deceased, such as child-care, driving, shopping and housework, DIY etc.

HSSIB is the acronym or shortened name for the Health Services Safety Investigations Body (HSSIB). 

In October 2023 the Healthcare Safety Investigation Branch (HSIB) which investigates patient safety incidents,  will change its name, its status and the way it works and will become the Health Services Safety Investigations Body or HSSIB. 
HSSIB will continue the work of HSIB’s national investigations programme but will not take over HSIB’s maternity investigations. These will be carried out by the new Maternity and Newborn Safety Investigations Special Health Authority or MNSI. This is because the Health and Care Act 2022 gave HSSIB increased powers, beyond those used by HSIB. This will allow HSSIB to conduct patient safety investigations using ‘safe space’ protection, which is not appropriate for maternity investigations into patient safety incidents which have caused serious harm to mothers and newborn babies. 
From October 2023, when HSSIB becomes operational, it will be an independent, non-departmental, arm’s length body (ALB) of the Department of Health and Social Care (DHSC).  HSIB hopes that the new HSSIB’s new working procedures and independence from the NHS and DHSC will help reassure patients and staff involved in patient safety incidents that their investigations are unbiased and don’t attribute blame, but will help the whole healthcare system learn from the system failures and mistakes that contributed to the patient’s injury. HSIB believes this will help improve patient safety.

HSSIB will work differently from HSIB:
•    HSSIB will be run by a board of executive and non-executive directors who will establish and take forward the strategic aims and objectives of the new organisation. HSSIB’s new board of directors will be accountable for the way HSSIB is managed, carries out its investigations, and for its performance. 
•    HSSIB will have the power to:  
o    access patients’ medical records without their consent;
o    compel people and organisations (such as NHS trusts) to cooperate with patient safety investigations;
o    obtain any evidence that it considers relevant for an investigation;
o    conduct investigations under ‘safe space’, meaning that evidence that is gathered can be protected from disclosure, even to the affected patient or their family.  
•    HSSIB will not carry out maternity investigations. These will be taken over by the Maternity and Newborn Safety Investigations Special Health Authority or MNSI.

If you have been contacted by MNSI, HSIB, HSSIB or NHS Resolution after the birth of your child or in relation to the mother’s maternity care, we strongly advise you to contact us on +44(0) 118 952 7201 immediately for free, confidential, specialist advice before you respond. Your child or your family may be entitled to substantial compensation.