If your child was born with weakness or paralysis in one arm, and you've since learned it was caused by a nerve injury during delivery, you're probably asking some version of the same question: could this have been prevented? Erb's palsy is one of the most common birth injuries associated with difficult deliveries, and while not every case is the result of a medical mistake, some are. Understanding the difference matters enormously, both for your child's future and for your family's ability to seek accountability. This article walks you through what Erb's palsy is, how it happens, and what factors might point toward a legitimate legal claim.
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Quick Checklist: Signs You May Have Grounds for a Claim
Before diving into the details, here's a quick set of questions to ask yourself. If you answer yes to several of these, it's worth speaking with a birth injury attorney.
- Has a doctor confirmed your child has Erb's palsy or an upper brachial plexus injury after birth?
- Were there documented risk factors present during your pregnancy, such as a large baby, gestational diabetes, or a prolonged labor?
- Did delivery involve shoulder dystocia, forceps, or a vacuum extractor?
- Do you recall or have records suggesting that excessive force was used on the baby's head or neck during delivery?
- Does your child still have significant weakness, limited movement, or ongoing need for therapy or surgery?
- Was your child born within the last 10 years in New York?
If most of those apply to your situation, keep reading. The sections below will help you understand why those factors matter.
What Is Erb's Palsy?
Erb's palsy, sometimes called Erb-Duchenne palsy, is a paralysis or weakness of the arm caused by damage to a cluster of nerves in the upper brachial plexus, specifically the C5 and C6 nerve roots and sometimes C7. These nerves run from the spinal cord through the neck and into the arm, controlling movement and sensation. When they're stretched or torn during birth, the result is limited or absent movement in the baby's shoulder and upper arm. In newborns, the condition typically shows up as what doctors call the "waiter's tip" posture: the arm hangs limply at the side, rotated inward, with the forearm extended and palm facing backward. Parents often first notice it because the baby isn't moving one arm normally, or because the Moro reflex (the startle response) is absent or weak on that side.
Erb's palsy accounts for roughly 80 to 85 percent of all obstetric brachial plexus injuries, which as a category occur in about 0.38 to 1.56 per 1,000 live births. That makes it relatively uncommon overall, but among difficult deliveries involving certain risk factors, the numbers climb considerably. The injury ranges in severity from mild weakness that resolves within months to permanent impairment that affects a child's ability to use their arm throughout their entire life.
How Does Erb's Palsy Happen During Delivery?
The most common cause is shoulder dystocia, an obstetric emergency where the baby's shoulder becomes lodged behind the mother's pubic bone after the head is already delivered. When that happens, the clock starts: the baby's airway is compromised, and the medical team has to act quickly to free the shoulder. The danger is what happens in that moment. If a provider applies excessive downward or lateral force to the baby's head and neck while trying to free the shoulder, the brachial plexus nerves can be stretched, compressed, or torn.
Not all Erb's palsy cases involve dramatic emergencies like shoulder dystocia. Forceps or vacuum-assisted deliveries can also put traction on the neck and shoulder area, especially if the instruments are applied incorrectly or with too much force. Risk factors that increase the likelihood of this kind of injury include a baby with high birthweight (typically 4 to 4.5 kilograms or more), maternal diabetes, maternal obesity, prolonged or obstructed labor, and certain fetal positions. It's important to note that Erb's palsy can sometimes happen even when a medical team does everything right. What the law asks is whether the standard of care was followed, not just whether a bad outcome occurred.
What Is the Medical Standard of Care for Shoulder Dystocia?
The American College of Obstetricians and Gynecologists (ACOG) recognizes shoulder dystocia as largely unpredictable and not always preventable. However, ACOG's guidance is unambiguous about how it must be managed once it occurs. Providers are expected to use structured, stepwise maneuvers, starting with the McRoberts maneuver (where the mother's legs are hyperflexed against her abdomen) and suprapubic pressure, before moving on to internal rotation maneuvers if needed. What is explicitly discouraged is using fundal pressure or excessive traction on the baby's head and neck, because both increase the risk of brachial plexus injury and fractures.
The standard also encompasses preparation and team training. Research has shown that hospitals and obstetric teams that regularly conduct shoulder dystocia simulation drills have measurably lower rates of brachial plexus injury. A hospital or practice that lacks any shoulder dystocia protocol, or that hasn't trained its staff to respond, may itself be a basis for liability. For families navigating a potential Erb's palsy lawsuit, understanding what providers were supposed to do is the foundation of understanding whether they failed to do it.
When Does Erb's Palsy Become a Malpractice Issue?
Medical malpractice doesn't mean a bad outcome happened. It means a provider deviated from the accepted standard of care, and that deviation caused harm. In the context of Erb's palsy, that line can appear in a few different ways.
Consider a situation where a mother with gestational diabetes is carrying a large baby, known risk factors for shoulder dystocia and brachial plexus injury. If her provider failed to discuss or offer a cesarean section given those combined risk factors, and the baby then suffered an Erb's palsy injury during a difficult vaginal delivery, there may be a viable negligence argument rooted in the antenatal management of the pregnancy.
Now consider a different scenario: shoulder dystocia occurs during delivery, but instead of following the McRoberts protocol, the delivering physician pulls hard on the baby's head and neck in an attempt to free the shoulder quickly. The brachial plexus nerves are torn. That delivery technique, applying excessive lateral or downward traction rather than using the recommended maneuvers, is the type of departure from standard care that can form the basis of a claim.
A third scenario involves forceps or vacuum extractors being used improperly or applied at the wrong moment, causing traction injuries to the neck that the clinical situation didn't warrant.
In all of these cases, the legal analysis comes down to the same question: did a provider do something (or fail to do something) that a reasonably competent provider would have done differently, and did that failure cause the injury? Answering that question almost always requires expert testimony from obstetric and pediatric specialists who review the full medical record and render opinions on what should have happened.
The Four Legal Elements Your Case Needs to Establish
New York medical malpractice cases follow the same framework used throughout the country, applied through New York's specific laws and court interpretations. There are four things that need to be established.
First is duty: once a physician-patient relationship exists between your provider and you (or your child), the provider owes a legal duty to deliver care that meets the accepted standard. This is almost never disputed in birth injury cases.
Second is breach: your legal team must show that the provider departed from accepted practice, whether that's ignoring documented risk factors, using contraindicated delivery techniques, or failing to prepare for foreseeable complications.
Third is causation: it has to be more likely than not that the departure caused or substantially contributed to the Erb's palsy, as opposed to the injury being an unavoidable complication of a difficult delivery. This element is often where Erb's palsy cases are won or lost, because the defense will argue the injury would have happened regardless.
Fourth is damages: there has to be actual harm. In cases where the Erb's palsy fully resolves within a few months, building a substantial damages case is difficult. Where the injury is permanent or causes lasting functional impairment, the damages picture changes significantly.
What Damages Can Be Recovered in an Erb's Palsy Case?
Roughly 85 to 86 percent of children with Erb's palsy do recover substantially within the first year of life. But for the approximately 14 percent who don't, the long-term consequences are serious. Persistent Erb's palsy can lead to shoulder contractures, limb length differences, permanent limitations in range of motion, and significant functional impairment in the affected arm throughout childhood and adulthood.
Damages in these cases typically include the projected lifetime costs of physical and occupational therapy, nerve surgeries (including neurolysis, nerve grafts, and nerve transfers), orthopedic procedures, assistive devices, and long-term medical monitoring. Beyond those economic damages, there are non-economic damages: the child's pain and suffering, loss of enjoyment of life, and the impact of growing up with a limb impairment on education, career, and daily independence. These projections require their own expert analysis, typically from life care planners and vocational economists who assess what the child will need and what they may lose over a lifetime.
How Long Do You Have to File an Erb's Palsy Lawsuit in New York?
New York's medical malpractice statute of limitations, under CPLR Section 214-a, gives most plaintiffs two and a half years from the date of the negligent act or the end of continuous treatment for the same condition. For children, there is an infancy toll under CPLR Section 208, which pauses the clock because the child is a minor. However, the New York Legislature has capped this toll for malpractice cases at 10 years from the date of the negligent act. That means for a birth injury like Erb's palsy, the practical deadline is generally 10 years from the date of delivery, regardless of the child's age at that point.
Many families assume they have until the child turns 18, but that's not how the law works in New York. Waiting until your child is 12 or 14 to consult an attorney could mean the window has already closed. This is one of the most consequential timing issues in birth injury law, and it's worth getting clarity on sooner rather than later.
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What to Do If You Think Your Child Has a Case
If you're reading this and the circumstances of your child's birth are bringing up questions, the most important step is to speak with an attorney who handles birth injury and medical malpractice cases. A qualified attorney can help you obtain and review the relevant medical records, identify whether expert review is warranted, and assess whether what happened during delivery looks like a departure from the standard of care or an unavoidable complication. This process takes time to do properly, which is another reason the statute of limitations matters so much.
You are not required to know whether you have a case before you make a call. That's exactly what the initial consultation is for. What you do need to do is act before the legal clock runs out, because once it does, even the strongest factual circumstances won't be enough. Reach out to the Porter Law Group today. You can fill out our online form for a free consultation and know your options. You can also call 833-PORTER9 or email info@porterlawteam.com to get started.
