Erbs Palsy Following Uneventful Delivery

My client is the mother of a seven year old child who was delivered vaginally with no documented complications at the time of delivery. However, he immediately exhibited symptoms of Erb’s Palsy on the left and is continuing neurological and physical therapy treatment for brachial plexus injury. The delivery note states in pertinent part:

The infant’s head was delivered over third degree midline laceration without difficulty. The remainder of the infant was delivered over without difficulty. The patient tolerated the procedure well. There were no complications sustained.

Issue
In a non-complicated delivery is the resulting brachial plexus injury a result of negligence? If so, how is that proven?

MEDQUEST EXPERT OPINIONS:

Without a shoulder dystocia it is not negligence but caused by the shoulder against the pubic bone during the 3rd trimester or the forces from pushing. Not negligence.
Dr JH – OBGYN

I so not believe this is negligence ACOG reports 40% of erbs palsy occurs on the absence of shoulder dystocia
Dr HP – OBGYN

 There is no way to prove the excessive traction of the head occurred in this case. The fact that Erb’s palsy occurred, in my opinion means, that more likely than not, excessive traction occurred during the delivery. However, depending upon the jurisdiction, it is usually a difficult case to successfully pursue.
Dr DP – OBGYN

 

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