Erb's palsy - making a successful medical negligence claim

Erb’s palsy (also known as brachial plexus paralysis or palsy) is a medical condition in which nerve damage to the brachial plexus nerves causes paralysis or weakness of the arm. It usually occurs during childbirth when a baby’s shoulder becomes stuck following delivery of the head (shoulder dystocia).​

Erb’s palsy can cause permanent disability affecting many aspects of daily life. Individuals with Erb’s palsy may be able to make a substantial compensation claim if their brachial plexus injury was caused by negligent medical care. As well as compensating the injured person for their physical injury, a successful claim can help provide the ongoing physiotherapy, specialist equipment and support that they need to manage the challenges associated with their disability and participate fully in their study, work, social and home life.

What mistakes can lead to an Erb’s palsy compensation claim?

Boyes Turner’s medical negligence team have successfully recovered substantial compensation for many clients with Erb’s palsy. In each case, we investigate what advice was given during the pregnancy, what may have gone wrong during the delivery and whether the brachial plexus injury could have been avoided. 

Each individual’s circumstances are unique, but common examples of substandard medical care which can lead to Erb’s palsy include:

• failing to recognise risk factors for shoulder dystocia, such as a large baby or indications from a previous birth;
• failing to discuss any relevant risks with the mother during pregnancy;
• failing to inform the mother of the risks and explain the treatment options available to her, so that she can make an informed decision about whether to have a caesarean section instead of vaginal delivery;
• improper use of birth assisting tools, such as forceps;
• where the midwife or obstetrician uses excessive and inappropriate force on the baby’s head, neck or shoulders during birth;
• failure to follow or incorrect use of recognised procedure and manoeuvres (such as the McRoberts manoeuvre) for managing shoulder dystocia.

Evidence needed for a successful Erb’s palsy claim

For a medical negligence claim to succeed, we must prove that damage to the brachial plexus nerves during birth was caused by substandard medical care in the pregnancy or delivery. We do this by gathering evidence of the care that our client received and the standard of care that would have been expected in those circumstances. The most important sources of evidence include:

Medical records

As part of the investigation, Boyes Turner’s medical negligence team obtain and review the mother’s relevant medical records. These notes should record advice given, details of the birth, including who was involved, what procedures were taken and what manoeuvres, if any, were attempted. These records are of critical importance in an Erb’s palsy compensation claim.

We often see cases where the medical record keeping is incomplete, with important details being omitted. Whilst this can make it more difficult for the injured person to prove their claim, generally the courts do not look favourably on hospitals where the medical record keeping was poor or inadequate.

We also obtain copies of the hospital’s internal protocols. This is important because our investigations often reveal that the hospital staff breached the hospital’s own protocol without justification and we can include these failures in the allegations that we make against the hospital to prove their substandard care.

Witness evidence

Boyes Turner’s medical negligence team always take a detailed witness statement from the mother and her birthing partner/s. As expert solicitors in Erb’s palsy claims, Boyes Turner understand the issues and information needed from the mother and anyone else present at the birth to consider whether there were failings in the medical care. 

The statements are crucial especially where the medical notes are of poor quality or inaccurate. The earlier that statements are taken the better, to avoid them being challenged if a significant period of time has passed and recollections are unclear.

Medical expert evidence

Evidence from medical experts is needed to assess whether there were failings in medical care, given the circumstances and standards of care at the time of the pregnancy and birth. It’s really important that the expert has the necessary experience and knowledge of NHS practices at the time of the alleged negligence, as these may change or develop over time. The experts should consider the medical records and witness statements in reaching their conclusion.

Experts are also needed to consider and report on the cause of the brachial plexus injury and whether it could have been avoided with appropriate medical care.

Guidance

Evidence of the expected standard of care at the time of the injury can often be found in published national guidance, such as from NICE, or medical professional bodies such as the Royal College of Obstetricians and Gynaecologists (RCOG). RCOG clearly set out guidelines on how shoulder dystocia should be managed. Where hospitals have failed to act in accordance with guidelines without justification, their failure to follow recommended guidance will be included in the allegations against them.

Is there a time limit to pursue an Erb’s palsy claim?

A child who has suffered an Erb’s palsy injury at birth has until their 21st birthday to issue court proceedings. If they fail to issue court proceedings within that time, they lose their right to bring a claim.

After the age of 21, in some circumstances it may still be possible to successfully pursue a case, such as where the child has impaired mental capacity, for example, as a result of a brain injury. If you are unsure whether your own or your child’s time limit (limitation) deadline for bringing a claim has passed, we recommend you contact us urgently to discuss this. Regardless of your time limit, we recommend seeking legal advice as soon as possible after the injury, so that your recollections and those of others are as clear as possible and the medical records are easily accessible when we are considering your right to bring a claim.

Boyes Turner’s medical negligence team will guide and advise you through each stage of the compensation claim process. Our highly experienced solicitors ensure that our clients are always kept informed and supported and are on hand to answer any questions along the way. 

If you or your child have Erb’s palsy and you would like to find out more about making a claim, contact the team by email at mednegclaims@boyesturner.com.