New York brachial plexus birth injury claims generally must be filed before the child's 10th birthday under CPLR §214-a and CPLR §208. Every settlement requires judicial approval at an infant compromise hearing under CPLR §1207 and §1208, and attorney fees in infant medical malpractice cases are fixed as reasonable compensation by the court under Judiciary Law §474 — courts routinely use the §474-a sliding scale as the presumptive benchmark. 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, and a 2016 peer-reviewed review in PubMed Central reports that 10–30% of affected infants suffer permanent neurologic deficits. Porter Law Group represents families whose children sustained preventable brachial plexus injuries in New York delivery rooms.
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Brachial plexus birth cases turn on contested obstetric medicine — the defense will argue the injury was caused by 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 brachial plexus injuries to hypoxic-ischemic encephalopathy, 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 neurologists, pediatric orthopedic and neurosurgeons, and life care planners to document the mechanism of injury and the cost of a lifetime of therapy, orthotics, and reconstructive surgery. Seven of eight partner-level attorneys are recognized by Super Lawyers, a distinction earned by fewer than 5% of New York attorneys.
"Brachial plexus 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
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A brachial plexus birth injury — also called neonatal brachial plexus palsy (NBPP) or obstetric brachial plexus palsy — is a stretch, tear, or rupture of the network of nerves (C5 through T1) that runs from the spinal cord through the neck into the shoulder, arm, and hand. The injury typically occurs during delivery when excessive lateral traction is applied to the fetal head while the shoulder remains impacted behind the mother's pubic bone. According to the 2014 ACOG NBPP Task Force Report, the overall incidence is approximately 1.5 per 1,000 total births, with a higher rate after vaginal delivery than cesarean.
The three clinical patterns differ by which nerve roots are damaged:
| Injury Pattern | Nerve Roots Involved | Incidence per 1,000 Births (2014 ACOG Task Force) | Clinical Presentation |
| Erb's palsy | C5–C6 (upper plexus) | 1.2 | "Waiter's tip" — arm hangs at side, rotated inward, wrist flexed |
| Klumpke palsy | C8–T1 (lower plexus) | 0.05 | "Claw hand" — hand and forearm weakness, possible Horner syndrome |
| Total plexus palsy | C5–T1 (entire plexus) | Balance of the 1.5/1,000 overall rate | Complete arm paralysis, often with sensory loss; most severe prognosis |
Injury severity also varies by the biology of the nerve damage. Neurapraxia is a temporary stretch with complete recovery. Axonotmesis involves axonal damage with partial recovery over months. Neurotmesis is a full nerve rupture requiring surgical repair. Avulsion — the nerve root torn from the spinal cord — cannot regenerate and is permanent. The 2016 PubMed Central review indicates that 10–30% of affected infants have permanent neurologic deficits, which may include limb-length discrepancy, glenohumeral joint dysplasia, and lifelong weakness.
The overwhelming majority of brachial plexus birth 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 impacted behind the mother's pubic symphysis. Under ACOG Practice Bulletin No. 178 (2017), the recognized management sequence is:
Recognized risk factors include fetal macrosomia (birth weight over 4,500 g), maternal diabetes, prior shoulder dystocia, operative vaginal delivery (vacuum or forceps), prolonged second stage, and fetal malposition. When these risk factors are present and the obstetrician either fails to offer a cesarean or fails to respond to the emergency with the recommended sequence, the resulting brachial plexus injury is generally actionable as medical malpractice.
Importantly, the 2014 ACOG Task Force confirms that neonatal brachial plexus palsy can occur without clinically recognizable shoulder dystocia — which defeats the common defense argument that "no dystocia = no negligence."
New York places no statutory cap on damages in medical malpractice or birth injury cases. A brachial plexus case with a permanent deficit can involve seven or eight figures in recoverable damages across four categories.
Future medical and surgical care. The treatment pathway frequently includes physical and occupational therapy from infancy through adolescence, primary nerve surgery (typically at 6–12 months when spontaneous recovery is not occurring), secondary reconstructive procedures such as tendon transfers or humeral osteotomy, and lifelong orthotic and therapeutic maintenance. Life care plans routinely project millions of 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 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.
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 — but under their own 2.5-year CPLR §214-a medical malpractice statute, which is not tolled by the child's infancy.
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Porter Law Group's published results include 53 cases at or above $1 million, with multiple pediatric recoveries exceeding $8 million. View all case results →
$8,300,000 Settlement: A premature infant suffered profound 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 delayed response to fetal distress during labor. Proceeds covered lifetime medical and educational needs.
$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.
Brachial plexus claims are medical malpractice cases, so the deadline is shorter than a general child injury claim and is subject to a hard 10-year cap that ordinary personal injury cases do not face. The deadline also depends on where the delivery occurred — private hospital, municipal or county hospital, or state-operated (SUNY) facility. Each category has its own procedural track, and the distinction catches many families by surprise.
| Category of Defendant | Statute of Limitations | Infancy Toll | Effective Deadline | Primary Statute |
| Private hospital / private physician | 2.5 years | Yes — but capped at 10 years from malpractice | Child's 10th birthday (in most cases) | CPLR §214-a + CPLR §208 |
| Municipal / county hospital (NYC Health + Hospitals, county hospitals) | 1 year and 90 days after Notice of Claim | No — the 90-day Notice of Claim deadline is NOT tolled by infancy | 90 days from injury to file Notice of Claim; 1 year + 90 days to sue | GML §50-e |
| State facility (SUNY Upstate, SUNY Downstate, Stony Brook University Hospital, other state-operated hospitals) | 2 years and 6 months after timely Notice of Intention | No — the 90-day Notice of Intention deadline is NOT tolled by infancy | Notice of Intention within 90 days; claim filed in the Court of Claims within 2 years and 6 months | Court of Claims Act §10; CPLR §214-a |
| Wrongful death of infant | 2 years from date of death | N/A | 2 years from death | EPTL §5-4.1 |
| Parents' derivative claim | 2.5 years | No — not tolled by child's infancy | 2.5 years from malpractice | CPLR §214-a |
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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.
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, with the claim itself filed in the Court of Claims. Missing either 90-day deadline can bar the claim entirely unless the court grants leave to file late.
5. Contact a brachial plexus 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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Porter Law Group represents families in brachial plexus and related birth injury malpractice cases throughout New York State, with a statewide practice reaching every county and jurisdiction. Our Syracuse headquarters serves Central and Upstate New York, while attorneys travel regularly to downstate courthouses for cases in the five boroughs, Westchester, and Long Island.
Serving Clients statewide , including Syracuse,New York City, Manhattan,Buffalo, Rochester, Albany, Yonkers, White Plains, Utica, Binghamton, Long Island (Nassau and Suffolk Counties), Saratoga Springs, Ithaca.
Wherever your child was injured in New York, call (833) PORTER-9 for a free consultation with an experienced brachial plexus birth injury attorney.
No, but the majority of permanent brachial plexus 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 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 NBPP 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 traction-and-fundal-pressure practice that the literature has linked to brachial plexus injuries for decades.
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 according to the 2014 ACOG NBPP Task Force. 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.
Recovery varies widely based on the severity of the nerve damage. Mild neurapraxia injuries — a temporary stretch without nerve fiber disruption — typically resolve within weeks to months. More severe injuries involving axonal damage, nerve rupture, or nerve root avulsion often require primary nerve surgery between 6 and 12 months of age if spontaneous recovery is not occurring, followed by secondary reconstructive procedures over the following years. The 2016 PubMed Central review indicates that 10–30% of infants with NBPP have permanent neurologic deficits, which can include limb-length discrepancies, glenohumeral joint dysplasia, and lifelong weakness of the affected arm. The prognosis is usually clear within the first 6 to 12 months of follow-up with a pediatric nerve specialist.
Brachial plexus 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 the statute caps that toll at 10 years from the malpractice, meaning most brachial plexus 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 — including SUNY Upstate, SUNY Downstate, and Stony Brook University Hospital — fall under the Court of Claims Act, which requires a Notice of Intention within 90 days and filing of the claim in the New York Court of Claims within 2 years and 6 months; the 90-day deadline is likewise not tolled by infancy.
Parents' separate derivative claims follow their own 2.5-year statute and are not tolled by the child's infancy.
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 (physical and occupational therapy, primary nerve surgery, secondary reconstructive procedures, orthotics), 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 carved out of the §474-a sliding scale by §474-a(5) and are instead fixed by the court as reasonable compensation under Judiciary Law §474 — in practice, courts routinely use the §474-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 $1,250,000) as the presumptive benchmark for reasonableness, subject to the court's independent review at the infant compromise hearing.
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 brachial plexus injury, 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.
Partially. A brachial plexus injury is a nerve injury, not a bone or joint injury. However, untreated brachial plexus injuries frequently cause secondary shoulder problems — muscle imbalance, glenohumeral dysplasia, posterior shoulder subluxation or dislocation, and medial rotation contracture. Porter Law Group's shoulder injury practice addresses the downstream orthopedic consequences, including clavicle and humerus fractures that can occur alongside a brachial plexus injury during a difficult delivery. Families facing both the nerve injury and the resulting shoulder deformity should discuss both with counsel because the life-care plan must account for both.
The absence of a documented shoulder dystocia does not foreclose a brachial plexus 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.
Michael S. Porter is the founder and managing partner of Porter Law Group, representing New York families in birth injury, brachial plexus, 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. Selected to Super Lawyers for 14 consecutive years (2012–2025), he 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
If your child suffered a brachial plexus 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, so you pay nothing unless you win.
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