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.

Medical negligence is when a medical professional, such as a doctor, midwife, or nurse, or other healthcare practitioner is negligent if they act in a way that falls below any acceptable standard of care.

If someone is injured as a result of medical negligence, they are entitled to compensation for any injury that was caused and for the financial consequences of that injury.

Medical negligence claims that involve severe injury and disability should always be handled by specialist medical negligence solicitors. It takes experience and skill to successfully prove that medical negligence has caused a patient’s injuries, and to secure the highest levels of compensation.

Anyone who has suffered serious injury or disability as a result of negligent NHS or private medical care can make a medical negligence claim for compensation. Special rules apply to children, adults with mental incapacity, and claims arising from a fatal injury/someone’s death.

Children and teenagers under the age of 18, or anyone with mental incapacity, must make their claim via a ‘litigation friend’. This is usually a parent or guardian in the case of a child, or a partner or other adult family member in the case of an adult with mental incapacity.  The solicitor handling the claim takes instructions and works closely with the litigation friend whilst ensuring that decisions are made in the best interests of the child or mentally incapable adult who is making the claim.  You can find out more about making a claim for a child.

Some important decisions, such as agreements to settle a child or mentally incapable adult’s claim, must be approved by the court.  Arrangements must also be made to safeguard the child or mentally incapable adult’s compensation, whether from an interim payment, lump sum settlement or agreed future payments. Depending on the claimant’s circumstances, this may be done by paying the money into a Court Funds Office account until the child is 18,  by appointing a Court of Protection deputy or setting up a personal injury trust.  You can find out more about Court of Protection deputyship and personal injury trusts.

If the claim is for bereaved family members and dependants after medical negligence caused someone’s death, the claim must be made by the deceased’s personal representative (executor or administrator of their estate) on behalf of all who are entitled to compensation as a result of the death. You can find out more about making a fatal injury medical negligence claim here.

The NHS has a responsibility to provide its patients with a safe and acceptable level of care. If a patient is seriously injured or their condition is made significantly worse as a result of negligent NHS care, the patient may be entitled to claim compensation.

Compensation can help meet the costs of care, therapies, equipment and home adaptations that are needed when an NHS mistake causes injury or disability that permanently affects the patient’s life.

We are experts at helping clients receive the compensation they deserve from the NHS. We understand the concerns that patients and their families sometimes have about claiming against the NHS. You can read our answers to many of the most common questions on our NHS claims page or speak to one of our solicitors about your own claim by contacting us.

Whilst we cannot guarantee that any particular claim will settle out of court, we take great care in investigating and preparing each claim that we take on. Our clients’ claims usually settle successfully without the need for a contested trial.

Occasionally, cases can only be concluded by a formal court hearing, such as where:

• NHS Resolution, the NHS’s defence organisation, decides to test the courts’ approach to a particular type of claim by taking a case all the way to court;
• there is a point of law in a claim which needs clarification to avoid confusion is future cases;
• where there is strong disagreement between the medical experts for each side about whether treatment amounted to negligence or caused the injury, needing the court to decide;
• where there is a factual dispute about what happened between the parties which must be decided upon by the court before liability can be determined.

Where our client’s claim is complicated by any of the above, we may advise our client that for the case to proceed, it must go to a court hearing. Our caring and highly experienced medical negligence solicitors and barristers ensure that our clients are always kept informed and supported.

Even in non-contested cases, there will be occasions when the case is brought for shorter hearings before the court, such as after a settlement for a child or brain injured adult without mental capacity takes place. In these cases, the lawyers for both sides present the agreed settlement to the court for the judge’s approval.

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

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.

Compensation for medical negligence 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 medical negligence solicitors ensure clients receive their compensation in the way that is best suited to meet their needs.

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.

There are three ways to fund a medical negligence claim, legal aid, no win no fee, and legal expense insurance.

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.