Erbs Palsy Compensation Claims

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If you would like obligation-free legal advice on your child's rights to Erb's Palsy Compensation arising from medical negligence, dial our free helpline or complete the contact form. You and your child may be eligible for legal representation under a No Win No Pay agreement.

Brachial plexus palsy injury

Erb's Palsy also known as Brachial Plexus Palsy is a condition which is mainly due to birth trauma.

During labour, the baby's shoulder becomes stuck behind the mother's pelvic bone. This is known as shoulder dystocia. Once medical staff become aware that the baby's shoulders are trapped, immediate and prompt treatment is required. Appropriate treatment is required to release the baby carefully. Occasionally medical staff will use excessive force in an attempt to try and free the baby. Sometimes they will use inappropriate methods in delivering the baby. This can cause further nerve damage to the baby's brachial plexus.

The brachial plexus is a large network of nerves running from the neck to the arm.  These nerves provide movement and feeling to the arm and hand. Erbs Palsy can affect 1 or all of the 5 primary nerves that supply the movement and feeling to an arm.

The paralysis can be partial or complete; the damage to each nerve can range from bruising to tearing.

Some babies recover on their own however some are left with a permanent disability requiring specialist treatment.

Erbs Palsy signs

A classic sign is an elbow which does not bend and the hand being held in a 'waiters tip'  (turning backwards) position. When a nerve is damaged, weakness or paralysis can affect the arm and hand. Signs of this may also include a limp hand and there may be an associated Horners syndrome. Horner's Syndrome is where the eyelid droops and the pupil is slightly smaller on the same side as the weak arm.

The baby may also have an associated Torticollis. Torticollis is where the baby faces away from their affected arm and is unable to face forward for any length of time.

Other problems might include:

  • A broken collar bone (clavicle),
  • A broken upper arm bone (humerus).

A nerve that has been severely damaged but still remains connected may heal, but scar tissue may form at the site of injury. This scar tissue may stop the electrical messages that run through the nerves, so they can't work getting to the muscles. A nerve that is completely pulled apart (avulsion) cannot repair itself, so the muscles it controls are paralysed.

It may be possible for the child to have an operation to help the nerve and restore some function to the muscle, but often the child will still be left with some weakness in the arm. About one in ten children need surgery to help improve function of the arm.

You should seek medical advice from a specialist brachial plexus surgeon (usually an orthopaedic surgeon), and a paediatric neurologist. Ask your general practitioner (GP) for referrals to these specialists. Your child may also need to see a physiotherapist for ongoing physiotherapy and an occupational therapist. It is important to get physiotherapy as soon as possible for the best outcomes and to continue with exercises at home.

Claiming compensation for negligence

Your child may be entitled to compensation for their erbs palsy injury. They will only be eligible for compensation if the erb's palsy was the result of medical negligence in the management of the pregnancy and/or delivery. The amount of compensation your child can get depends on how badly affected the child is in terms of their injuries, disabilities and treatment needs.

Whether there was medical negligence or not, depends on many factors. An experienced medical negligence solicitor can review the antenatal pregnancy records, birth records and the baby's hospital notes to determine exactly what went on during the pregnancy and labour.

A medical negligence solicitor will also take statements from the parents and speak with independent medical experts to determine if there is a case for negligence. Medicolegal reports will need to be obtained to establish a case for medical negligence compensation.

Some factors that are relevant in determining whether you may have a case for erbs palsy compensation:

  • failure to estimate a large baby's weight and size prior to delivery (especially if there are clinical signs indicating a large baby and/or a prior history of previous pregnancies with large babies).
  • failure to perform a caesarean section when there are clinical indications to do so.
  • failure to recognise and treat maternal diabetes (maternal diabetes often increases the risk of having a large baby).
  • failure to follow protocols for shoulder dystocia (there are various maneuovres that need to be applied by the doctor if the baby becomes stuck in the birth canal).
  • applying unnecessary and excessive traction or force  during the delivery which then results in injury.

Legal advice

We can assist you in finding out your rights by referring you to a specialist medical negligence lawyer. Our lawyers are experienced in handling erbs palsy claims against hospitals, obstetricians, midwives, doctors and nurses.

Time limits apply in making a claim for compensation. In some States the law requires that a claim be brought within 3 years of the baby's birth. If you do not make a claim on behalf of your child within this time, your child may miss out (i.e be "statute-barred").

The laws vary depending on which State the baby was born in Australia. Our legal team can advise you as to whether the time limit has run out in your particular case.

If you suspect your child may be entitled to Erb's Palsy Compensation because of their birth trauma injury, you should speak with a solicitor as soon as possible, because if the time limit runs out, you (and your child) may be prevented from bringing a claim at all.




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