Anticipating Defenses to Brachial Plexus Injuries
Shoulder Dystocia and Brachial Plexus
Shoulder dystocia is an uncommon but expected occurrence, occurring in about one percent of all births. Essentially, it describes what happens when a baby’s shoulder gets stuck behind the mother’s pubic bone during labor. In most cases, a baby getting stuck is not the cause of medical malpractice—it is simply one of those things that happens during childbirth. However, the way a doctor deals with the shoulder dystocia can lead to injury and a claim for birth injury malpractice. One type of harm is called a brachial plexus injury, where the nerves in the neck area of the spinal cord are traumatized (often stretched or torn), which causes permanent injury to the child’s arm. Another harm is where the baby is stuck for too long in the birth canal, and is deprived of critical oxygen, leading to cerebral palsy.
The Usual Defenses
In almost every brachial plexus lawsuit, the defense is the same.
- First, that the damage to the nerves occurred in utero before delivery;
- Second, that the obstetrician used gentle traction
- Third, that the amount of force used by the obstetrician was necessary to prevent a more serious injury (or death) because of oxygen deprivation
These defenses, though they may seem laughable, should be given serious consideration. Medical malpractice trials are difficult, particularly for jurors who have no familiarity with medicine. They are often learning about these conditions and techniques for the first time, and have to decide between the medical experts of the parties.
Nerve Damage Occurring in the Womb
The first defense, that the baby’s nerve damage occurred in the womb, can typically be taken care of with statistics. Doctors will point to cases where children who were born by cesarean section developed brachial plexus injuries. However, it is clear that in many of those cases, the injury occurred with the delivery—the incision may have been too small and the baby may have been pulled out incorrectly. Furthermore, if the baby is born without atrophy (weakening) of the arm, the condition must have happened very near the time of birth.
Dovetailing on the first defense, the obstetrician may claim that he used gentle traction (force) to dislodge the baby. First, gentle is a relative term. Second, the medical literature is clear that gentle traction cannot cause a brachial plexus injury. If it could, babies would be particularly susceptible to brachial plexus injuries even after birth. No, it takes a great deal of force to cause nerve damage.
The Heroic Obstetrician
Doctors might claim that they had to act quickly and that, even if they caused a brachial plexus injury, it was for the greater good of preventing oxygen deprivation which could have led to death.
While doctors must act quickly, they must also act correctly. There is a procedure that must be followed in any shoulder dystocia emergency. Properly followed, the likelihood is that the baby will be delivered without any harm. Doctors who do not follow the procedure, likely because they don’t know it or because they panic when confronted with the emergency, are unnecessarily risking the health of their patients. The maneuvers are taught in medical school, and they are taught in continuing medical education courses.
Our medical malpractice attorneys are experienced at dealing with defenses to brachial plexus injury cases. If you believe that your child suffered a shoulder dystocia injury at birth, contact us at (440) 252-4399 or online for a free consultation.