Erb’s palsy is a birth injury — a brachial plexus injury that occurs when the nerves controlling the arm, hand, and shoulder are damaged during delivery. When that damage results from medical negligence during the birthing process, the family has a medical malpractice claim. Understanding what Erb’s palsy is, how liability arises, and what pursuing a claim involves is the starting point for families navigating this type of case.
What Is Erb’s Palsy?
Erb’s palsy (also called brachial plexus birth palsy or Erb-Duchenne paralysis) results from injury to the brachial plexus — the network of nerves running from the spinal cord through the neck and into the arm. These nerves control movement and sensation in the shoulder, arm, and hand. When they’re stretched, compressed, or torn during delivery, the result is weakness or paralysis in the affected arm that ranges from mild to severe.
Erb’s palsy occurs in roughly 1 to 2 per 1,000 live births in the United States. The signature clinical presentation is the “waiter’s tip” posture: the affected arm hangs at the side with the elbow extended and the forearm pronated, the result of weakness in the muscles the damaged nerve roots control. Mild cases resolve with physical therapy. Severe cases — particularly those involving nerve root avulsion (where the nerve is completely torn from the spinal cord) — may produce permanent functional limitations requiring surgical intervention and long-term rehabilitation.
How Erb’s Palsy Is Caused and When Medical Malpractice Arises
The most common mechanism of birth-related Erb’s palsy is shoulder dystocia — when the baby’s shoulder becomes stuck behind the mother’s pubic bone after the head is delivered. The obstetric response to shoulder dystocia requires specific maneuvers designed to free the shoulder without placing excessive traction on the baby’s neck. When excessive lateral traction is applied to the head during delivery, the brachial plexus is stretched and injured.
Not every case of Erb’s palsy following shoulder dystocia constitutes medical malpractice. Shoulder dystocia is a recognized obstetric emergency, and some brachial plexus injuries occur even when the delivery team responds appropriately. The question in a malpractice claim is whether the clinical team deviated from the standard of care in managing the dystocia and whether that deviation caused the injury.
Medical malpractice may be implicated when:
- Risk factors for shoulder dystocia were present and not adequately accounted for in the delivery plan (macrosomia — large baby — maternal diabetes, prior shoulder dystocia, obesity, prolonged second stage of labor)
- Excessive lateral traction on the head was applied beyond what the standard obstetric maneuvers would justify
- Fundal pressure was applied during shoulder dystocia, which is contraindicated and increases the risk of brachial plexus injury
- A cesarean delivery was not offered or recommended when clear risk factors were present
- Documentation of the delivery is inconsistent, incomplete, or appears altered — a common indicator of awareness of deviation from standard care
Erb’s palsy can also occur through instrumental delivery (forceps or vacuum extraction) where excessive force was applied. And in rare cases, it can arise from positioning injuries or other causes, though these are less commonly the basis for malpractice claims.
What an Erb’s Palsy Claim Involves
Birth injury malpractice cases require capabilities beyond standard personal injury practice:
- Expert obstetric review. The standard of care for managing shoulder dystocia, and whether the delivery team met it, is established through expert testimony from obstetricians who practice in the relevant specialty. These experts review the delivery records, the obstetric notes, fetal monitoring strips, nursing documentation, and — when available — operative or delivery room video to evaluate whether the documented management was consistent with standard obstetric practice.
- Medical records scrutiny. Delivery records in shoulder dystocia cases sometimes contain documentation inconsistencies that skilled birth injury attorneys identify through forensic document review. Altered documentation is itself evidence of awareness of a deviation from standard care.
- Damages development. Erb’s palsy cases involving permanent functional limitation require life-care planning, vocational expert assessment of the child’s long-term employment capacity, and economic projection of lifetime care costs and lost earning capacity. These expert-driven damages calculations are essential to recovery that reflects the full scope of the injury.
- Statute of limitations for minors. Birth injury malpractice claims typically benefit from the minor tolling provisions discussed in state law — in most states, the statute of limitations is tolled until the child reaches the age of majority, giving the family time to assess the full extent of the injury before litigation decisions must be made. However, the practical advantages of earlier case evaluation — better evidence preservation, clearer expert recollection — favor not waiting until the tolling period is exhausted.
What Erb’s Palsy Cases Are Worth
Settlement and verdict values in Erb’s palsy cases reflect the severity of the permanent injury:
- Cases where the injury resolves substantially with therapy and the child recovers most functional use of the arm produce modest settlements — typically in the low to mid six figures — reflecting medical costs, the pain of the treatment process, and residual limitations.
- Cases involving permanent significant functional limitation — inability to raise the arm above shoulder height, weakness affecting hand function, the need for surgical reconstruction — produce substantially larger recoveries that include future care costs, vocational limitations, and the lifetime impact on the child.
- Severe cases involving nerve root avulsion with permanent paralysis, multiple surgeries, and permanent functional incapacity across the child’s lifespan produce seven-figure recoveries when liability is established and the damages are fully developed through life-care planning.
A medical malpractice attorney who handles birth injury cases brings the obstetric expert network, the document forensics capabilities, and the damages development expertise that Erb’s palsy cases require. A catastrophic injury attorney ensures that the lifetime damages calculation — for cases where permanent functional limitation will affect every aspect of the child’s life and career — is fully built through qualified experts. For the broader context of how medical negligence claims work, the personal injury lawyer resource covers the general framework that applies to these cases.
Frequently Asked Questions
How do I know if my child’s Erb’s palsy was caused by medical negligence?
Not every case of Erb’s palsy arises from malpractice — shoulder dystocia is a genuine obstetric emergency and some injuries occur even with appropriate management. The way to determine whether negligence occurred is through expert medical review of the delivery records and documentation. An Erb’s palsy attorney retains obstetric experts who evaluate the standard of care applied and whether the delivery team’s management of the dystocia was within acceptable clinical standards. You don’t need to reach a conclusion about negligence before consulting an attorney — that evaluation is what the consultation and the expert review produce.
How long do I have to file an Erb’s palsy malpractice claim?
In most states, medical malpractice claims for injuries to minors benefit from tolling provisions that pause the statute of limitations until the child reaches the age of majority. This means a child injured at birth typically has until age 18 (or sometimes 19 or 20, depending on the state’s majority plus limitations period) to file. However, evidence degrades over time, witnesses become unavailable, and medical records may become harder to obtain. Consulting an attorney early — while records are fresh and experts can best reconstruct the delivery — produces better outcomes than waiting until the tolling period is nearly exhausted.
Can I pursue an Erb’s palsy claim even if my child has mostly recovered?
Yes. Recovery from physical therapy doesn’t eliminate the claim — it affects the damages calculation. A claim that involves significant early pain, multiple therapy sessions, and residual functional limitation (even if modest) produces a real damages case. Full recovery would affect the value of the claim, but a case is still viable if the injury was caused by negligence and the child suffered compensable harm. An attorney can evaluate whether the severity of the outcome, combined with the evidence of negligence, justifies pursuing the claim.
