Erb's Palsy Lawyer in New York

New York Erb's palsy claims must generally be filed before the child's 10th birthday under CPLR §214-a and CPLR §208, and every settlement of a minor's claim requires judicial approval at an infant compromise hearing under CPLR §1207 and §1208. According to the 2014 American College of Obstetricians and Gynecologists Task Force on Neonatal Brachial Plexus Palsy, the overall incidence of neonatal brachial plexus palsy is approximately 1.5 per 1,000 total births, with Erb's palsy (C5-C6 involvement) occurring in roughly 1.2 per 1,000 births and representing the most common pattern. A peer-reviewed Pediatric Orthopaedic Society of North America (POSNA) review reports that approximately 1 in 10 cases persist beyond one year and may require microsurgical reconstruction. Porter Law Group represents families whose children sustained preventable Erb's palsy injuries in New York delivery rooms.

Why Choose Porter Law Group for Erb's Palsy Cases in New York?

Erb's palsy cases turn on contested obstetric medicine. The defense will argue that the injury was caused by the natural forces of labor rather than excessive lateral traction, and winning requires experts who can interpret delivery notes, shoulder dystocia documentation, and the precise sequence of maneuvers performed. Porter Law Group has recovered more than $500 million for seriously injured clients since 2009, including multiple pediatric recoveries exceeding $8 million for children with permanent delivery-related disabilities.

The firm's birth injury practice handles the full spectrum of labor and delivery malpractice, from Erb's palsy and other brachial plexus injuries to hypoxic-ischemic encephalopathy and cerebral palsy, and every case is built with the same forensic obstetric rigor.

Led by Harvard-educated attorney Michael S. Porter, a former U.S. Army JAG Corps Captain with over 20 years of trial experience, the firm retains maternal-fetal medicine specialists, pediatric orthopedic surgeons, pediatric neurologists, hand and microsurgery specialists, and life care planners to document the mechanism of injury and the cost of a lifetime of therapy, orthotics, and reconstructive surgery.

"Erb's palsy cases are won or lost on the delivery-room documentation. What maneuvers were performed, in what order, how long each took, how much traction was applied, whether fundal pressure was used. The chart tells the story of whether the standard of care was followed or whether a physician panicked and pulled too hard. ACOG Practice Bulletin No. 178 is explicit that aggressive lateral traction on the fetal head is associated with brachial plexus injuries, and when a chart shows that practice, the case is very strong."

— Michael S. Porter, J.D., Porter Law Group

What Is Erb's Palsy?

Erb's palsy, also called Erb-Duchenne palsy, is a paralysis or weakness of the arm caused by injury to the upper trunk of the brachial plexus, specifically the C5 and C6 nerve roots. The brachial plexus is the network of nerves running from the spinal cord through the neck into the shoulder, arm, and hand. According to StatPearls (NCBI Bookshelf), Erb's palsy typically results from excessive lateral traction applied to the fetal head while the shoulder remains impacted behind the mother's pubic bone during delivery.

The classic clinical presentation is the "waiter's tip" posture: the affected arm hangs limply at the side, rotated inward at the shoulder, with the elbow extended, the forearm pronated, and the wrist and fingers flexed. The newborn cannot lift the arm, bend the elbow, or rotate the shoulder outward. Hand and finger movement are typically preserved because the lower brachial plexus (C7, C8, T1) is intact.

Erb's palsy is one of three clinical patterns of neonatal brachial plexus palsy. The differences matter because they predict prognosis and surgical strategy.

Severity also varies by the biology of the nerve damage itself. Neurapraxia is a temporary stretch with full recovery typically within weeks. Axonotmesis involves axonal damage with partial recovery over months. Neurotmesis is a complete nerve rupture requiring surgical repair. Avulsion, in which the nerve root is torn from the spinal cord, cannot regenerate and is permanent without sophisticated nerve transfer surgery.

What Causes Erb's Palsy in a New York Delivery?

The overwhelming majority of Erb's palsy injuries occur when excessive downward or lateral traction is applied to the fetal head during a shoulder dystocia, an obstetric emergency in which the anterior shoulder becomes lodged behind the mother's pubic symphysis. Under ACOG Practice Bulletin No. 178 (2017), the recognized management sequence for shoulder dystocia is:

1. Recognize and announce the shoulder dystocia, call for additional help, and track elapsed time.
2. Perform the McRoberts maneuver first by sharply flexing the mother's legs against her abdomen, which resolves a substantial portion of shoulder dystocias on its own.
3. Apply suprapubic pressure concurrently with McRoberts.
4. Deliver the posterior arm or perform internal rotational maneuvers (Woods, Rubin) if initial maneuvers fail.
5. Avoid fundal pressure and excessive lateral traction. The American Academy of Family Physicians' summary of ACOG guidance notes that traction combined with fundal pressure has been associated with a high rate of brachial plexus injuries and fractures.

Recognized risk factors for shoulder dystocia and Erb's palsy include fetal macrosomia (birth weight over 4,500 g), maternal diabetes, prior shoulder dystocia, operative vaginal delivery using vacuum or forceps, prolonged second stage, and fetal malposition. When these risk factors are present and the obstetrician either fails to offer a planned cesarean or fails to respond to the emergency with the recommended sequence, the resulting Erb's palsy is generally actionable as medical malpractice.

Importantly, the 2014 ACOG NBPP Task Force confirmed that brachial plexus palsy can occur without a clinically recognizable shoulder dystocia, which defeats the common defense argument that "no documented dystocia means no negligence." Erb's palsy can also occur during cesarean delivery, although the rate is much lower. The 2014 ACOG Task Force reports brachial plexus injuries at approximately 0.3 per 1,000 cesarean deliveries compared with 1.7 per 1,000 vaginal deliveries.

Will My Child Recover From Erb's Palsy?

Recovery varies dramatically by severity. According to a Contemporary OB/GYN review of the published literature, when the injury is limited to C5 and C6, approximately 90% of infants will spontaneously recover. Cases involving C5 to T1 are associated with less than 50% recovery, and when Horner syndrome is present (indicating sympathetic nerve fiber involvement), there is essentially no chance of spontaneous recovery without surgical intervention.

Treatment typically progresses through several stages. Daily physical therapy and range-of-motion exercises begin at about three weeks of age to prevent joint contracture, per OrthoInfo (American Academy of Orthopaedic Surgeons). If meaningful recovery has not occurred by 3 to 6 months of age, surgical evaluation is indicated. Primary nerve surgery (nerve graft, nerve transfer, or neurolysis) is typically performed between 4 and 9 months of age. Secondary reconstructive procedures, such as tendon transfers or humeral derotational osteotomy, may be performed in the toddler or school-age years to address residual functional deficits and skeletal deformity.

Even with surgery, full recovery is not guaranteed. The POSNA review reports that approximately 1 in 10 NBPP cases persist beyond one year, and residual weakness, limb-length discrepancy, glenohumeral joint dysplasia, and lifelong functional limitation are common in severe cases.

What Compensation Can You Recover for an Erb's Palsy Injury?

New York places no statutory cap on damages in medical malpractice or birth injury cases. An Erb's palsy case with a permanent deficit can involve seven or eight figures across four categories of damages.

Future medical and surgical care. The treatment pathway frequently includes physical and occupational therapy from infancy through adolescence, primary nerve surgery, secondary reconstructive procedures such as tendon transfers or humeral osteotomy, orthotics, and lifelong therapeutic maintenance. Life care plans for moderate-to-severe Erb's palsy cases routinely project several million dollars in medical costs.

Lost future earning capacity. A child with permanent dominant-arm weakness loses access to a substantial range of manual trades and many professions. Economists project earning capacity loss based on the child's family educational background, U.S. Census demographic earnings data, and vocational analysis of the child's specific limitations.

Pain and suffering. Non-economic damages in New York are not capped. Juries consider the permanence of the injury, the child's life expectancy, and the loss of normal bimanual function in every activity of daily living. For a child who will live 70 or more years with a permanent arm deficit, non-economic damages can reach seven figures even in the absence of cognitive impairment.

Parents' derivative claim. Parents can recover the medical expenses they paid on the child's behalf and damages for loss of the child's services. Their claim follows the parents' own 2.5-year medical malpractice statute under CPLR §214-a and is not tolled by the child's infancy. This is the most commonly missed deadline in birth injury cases.

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Recent Case Results

Porter Law Group's published results include 53 cases at or above $1 million, with multiple pediatric recoveries exceeding $8 million.

$8,300,000 Settlement. A premature infant suffered profound and permanent disabilities, including cerebral palsy, after physicians failed to properly manage the mother's pre-gestational diabetes, the same metabolic condition that is a leading risk factor for macrosomia and shoulder dystocia. The structured settlement provides lifetime care and therapy funding.

$8,250,000 Settlement. An infant sustained permanent physical and cognitive disabilities after a delayed response to fetal distress during labor.

$8,120,000 Settlement. An infant suffered permanent delivery-related injuries caused by mismanaged labor and delivery. The recovery funded a life care plan built with the family's physicians and therapists.

Every case is different. Past results do not guarantee future outcomes.

How Long Do I Have to File an Erb's Palsy Lawsuit in New York?

Erb's palsy claims are medical malpractice cases, so the deadlines are shorter than for general child injury claims and are subject to a hard 10-year cap that ordinary personal injury cases do not face. The applicable rule depends on where the delivery occurred. Each category has its own procedural track, and the distinction catches many families by surprise.

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What Should You Do If You Suspect an Erb's Palsy Birth Injury?

1. Request the complete labor and delivery record. Under New York Public Health Law §18, you are entitled to your and your child's complete medical records within a reasonable time of a written request. The critical documents are the full labor-and-delivery note, the shoulder dystocia documentation (if any), the nursing notes tracking maneuvers and elapsed time, the neonatal examination, and any imaging or nerve conduction studies.
   
2. Document every pediatric and therapy visit. Keep a dated log of physical therapy, occupational therapy, and every specialist appointment with pediatric neurology, pediatric orthopedics, or hand surgery. The child's recovery trajectory over the first year is central to both the prognosis and the damages calculation.
   
3. Photograph the affected arm regularly. Resting position, range of motion, and limb-length comparisons are critical evidence. Begin photographing the arm's position shortly after birth and continue monthly through the first year and beyond.
   
4. Act quickly if your child was born at a public or state hospital. Births at municipal and county hospitals trigger the 90-day Notice of Claim deadline under GML §50-e. Births at SUNY or other state-operated hospitals trigger a 90-day Notice of Intention deadline under Court of Claims Act §10. Missing either 90-day deadline can bar the claim entirely.
   
5. Contact an Erb's palsy birth injury attorney. Porter Law Group offers free consultations on a contingency-fee basis and handles every stage of the case, from record collection through expert review, litigation, infant compromise approval, and trial.
   

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Erb's Palsy Lawyers Near You in New York

Porter Law Group represents families in Erb's palsy and related birth injury cases throughout New York State. The firm's Syracuse headquarters serves Central and Upstate New York, and attorneys travel regularly to downstate courthouses for cases in the five boroughs, Westchester, and Long Island.

Serving Clients statewide, including Erb's Palsy Lawyer in Syracuse, New York City, Buffalo, Rochester, Albany, Yonkers, White Plains, Utica, Binghamton, Long Island (Nassau and Suffolk Counties), Saratoga Springs, Watertown, Ithaca.

Wherever your child was injured in New York, call (833) PORTER-9 for a free consultation with an experienced Erb's palsy attorney.

Frequently Asked Questions About Erb's Palsy Cases in New York

Is Erb's palsy always the result of malpractice?

No, but the majority of permanent Erb's palsy injuries follow excessive traction that violates the published obstetric standard of care. Under ACOG Practice Bulletin No. 178 (2017), the recommended response to shoulder dystocia is the McRoberts maneuver first, suprapubic pressure second, and delivery of the posterior arm or internal rotational maneuvers thereafter, not aggressive lateral traction on the fetal head. The 2014 ACOG Task Force on Neonatal Brachial Plexus Palsy also confirmed that brachial plexus palsy can occur without a clinically recognizable shoulder dystocia. The determinative question is whether the delivery-room chart documents appropriate maneuvers in the appropriate sequence, or whether it documents the traction-and-fundal-pressure practice that the literature has linked to brachial plexus injuries for decades.

What is the difference between Erb's palsy and Klumpke palsy?

Erb's palsy involves damage to the upper brachial plexus nerve roots (C5 and C6) and is the most common pattern, occurring in approximately 1.2 per 1,000 births. It produces the classic "waiter's tip" posture, with the arm held at the side, rotated inward, and the wrist flexed. Klumpke palsy involves the lower plexus (C8 and T1) and is far rarer at approximately 0.05 per 1,000 births. It causes weakness in the forearm and hand, often with a "claw hand" appearance, and can include Horner syndrome (a drooping eyelid, constricted pupil, and reduced facial sweating on the affected side) when sympathetic nerve fibers are involved. Mixed or total-plexus injuries involving all nerve roots from C5 to T1 are the most severe and have the worst prognosis without surgery.

Will my child recover from Erb's palsy?

Recovery varies widely based on the severity of nerve damage. Mild neurapraxia injuries typically resolve within weeks to months. According to Contemporary OB/GYN, approximately 90% of infants with isolated C5-C6 injury achieve spontaneous recovery. More severe injuries involving axonal damage, nerve rupture, or nerve root avulsion often require primary nerve surgery between 4 and 9 months of age if spontaneous recovery is not occurring, followed by secondary reconstructive procedures over the following years. The POSNA review reports that approximately 1 in 10 NBPP cases persist beyond one year and may require microsurgical reconstruction. The prognosis is usually clear within the first 6 to 12 months of follow-up with a pediatric nerve specialist.

How long do I have to file an Erb's palsy lawsuit in New York?

Erb's palsy claims are medical malpractice actions under CPLR §214-a, which imposes a 2.5-year statute of limitations. CPLR §208 tolls the deadline during the child's minority but caps that toll at 10 years from the malpractice, meaning most Erb's palsy cases must be filed before the child's 10th birthday. Deliveries at municipal and county hospitals (including NYC Health + Hospitals facilities) require a Notice of Claim within 90 days of the injury under General Municipal Law §50-e, and the infancy toll does not extend the 90-day deadline. Deliveries at state-operated facilities such as SUNY Upstate and SUNY Downstate fall under the Court of Claims Act, which requires a Notice of Intention within 90 days. Parents' separate derivative claims follow their own 2.5-year statute and are not tolled by the child's infancy.

How are Erb's palsy settlements calculated?

New York places no statutory cap on damages in medical malpractice cases, so settlement value is built from the specific facts of the injury. The largest categories are typically future medical and surgical care, lost future earning capacity, and non-economic damages for pain and suffering over the child's full life expectancy. Every settlement of a minor's claim must be approved by a judge at an infant compromise hearing under CPLR §1207 and §1208. Attorney fees in medical malpractice claims brought on behalf of an infant are governed by Judiciary Law §474-a, which sets a sliding scale: 30% of the first $250,000; 25% of the next $250,000; 20% of the next $500,000; 15% of the next $250,000; and 10% of any amount over $1.25 million.

My child was born by cesarean section. Can they still have Erb's palsy?

Yes. The 2014 ACOG NBPP Task Force reports brachial plexus injuries occur at a rate of approximately 0.3 per 1,000 cesarean deliveries, compared with 1.7 per 1,000 vaginal deliveries. Cesarean cases can involve difficult extraction, excessive traction during delivery of the fetal head or shoulders through the uterine incision, or an undersized incision. Because cesarean delivery is typically performed in part to avoid the shoulder dystocia risks that cause Erb's palsy, an injury during a cesarean may indicate a separate deviation from the standard of care, and the case deserves immediate review by an attorney and an obstetric expert.

What if the hospital says there was no shoulder dystocia during my child's birth?

The absence of a documented shoulder dystocia does not foreclose an Erb's palsy malpractice claim. The 2014 ACOG NBPP Task Force expressly acknowledges that neonatal brachial plexus palsy can occur without a clinically recognizable shoulder dystocia at the time of either vaginal or cesarean delivery. Cases without a charted dystocia often involve other deviations from the standard of care: failure to offer a planned cesarean where macrosomia or prior dystocia was known, use of vacuum or forceps against indications, excessive traction during a nominally uncomplicated delivery, or under-documentation of an emergency that actually did occur. A thorough chart review by an obstetric expert is essential before drawing any conclusion about liability.

Does Erb's palsy cause any other long-term complications?

Yes. Untreated or partially recovered Erb's palsy frequently causes secondary musculoskeletal problems as the child grows. These include glenohumeral joint dysplasia, posterior shoulder subluxation or dislocation, internal rotation contracture of the shoulder, limb-length discrepancy, and muscle imbalance across the shoulder and upper arm. Many children also experience clavicle and humerus fractures as part of the original delivery trauma. Comprehensive life care planning for an Erb's palsy case must account for both the nerve injury and these downstream orthopedic consequences.

What Clients Say About Porter Law Group

Meet the Attorney

Michael S. Porter, J.D.

Michael S. Porter is the founder and managing partner of Porter Law Group, representing New York families in Erb's palsy, birth injury, medical malpractice, and catastrophic injury cases. A graduate of Harvard University (B.A., 1994) and Syracuse University College of Law (J.D., 1997), Porter served four years as a Captain in the U.S. Army Judge Advocate General's Corps. He has been recognized by Super Lawyers, holds a 10.0 Superb rating on Avvo, and a Distinguished rating from Martindale-Hubbell.

Bar Admissions: New York State Bar | U.S. District Court, Northern and Western Districts of New York

Memberships: New York State Bar Association, Onondaga County Bar Association, New York State Academy of Trial Lawyers, Multi-Million Dollar Advocates Forum

Contact Porter Law Group Today

If your child sustained an Erb's palsy injury during a New York delivery, critical deadlines may run faster than you expect. Municipal hospital cases require a Notice of Claim within 90 days under GML §50-e, SUNY and other state-facility cases require a Notice of Intention within 90 days under the Court of Claims Act, parents' derivative claims are not tolled by the child's infancy, and the 10-year cap under CPLR §208 closes most birth injury windows before a child's 10th birthday.

Contact Porter Law Group today at (833) PORTER-9 for a free, no-obligation consultation. We operate on a contingency-fee basis under Judiciary Law §474-a, so you pay nothing unless you win.

Phone: +1 833-767-8379

Email: info@porterlawteam.com

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