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Pain and Suffering Verdict Reduced in “Mild” Erb’s Palsy Case

Posted in Medical Malpractice

Joshua Delgado was born on November 27, 2006 at St. Barnabas Hospital in the Bronx. He was delivered by Gloria Murray, a certified nurse midwife. Unfortunately, Joshua suffered a brachial plexus injury at birth and was later diagnosed with Erb’s palsy.

His parents sued claiming that Murray was negligent and caused Erb’s by using excessive lateral traction on Joshua’s head during the birthing process at a time when it was likely shoulder dystocia was present. After a two week trial, the jury agreed and on October 14, 2011 returned a verdict of malpractice and awarded pain and suffering damages in the sum of $620,000 ($20,000 past – 5 years, $600,000 future – 20 years).

The defendant appealed, successfully arguing that the amount of damages was excessive. In Delgado v. Murray (1st Dept. 2014), the appellate court ordered a reduction of the future damages award from $600,000 to $300,000.

Plaintiff contended that Joshua sustained permanent nerve damage to the nerves in the brachial plexus area innervating the left arm, wrist and hand causing the following injuries and deficits:

  • impairment of shoulder rotation
  • scapular winging
  • impairment of ability to have the left hand reach the back of the head
  • impaired ability to rotate the left hand
  • decreased length of the left arm which will eventually result in a 10% difference in arm lengths
  • likely development of contractures in the future which “may require surgical correction”

The defense countered, successfully arguing that this was a “mild” Erb’s palsy case, a term the appellate court adopted in its decision and that:

  • physical therapy (discontinued by June 2009) gave Joshua positive improvement from his limitations
  • function from C-5 was restored and from C-6 was improving
  • Joshua has not undergone any surgery for his injury and future surgery would yield no benefit since, as one of his treating doctors noted, by the age of 11 months Joshua seemed to be “correcting quite nicely on his own”

The jury also awarded and the appellate court affirmed $380,000 for future loss of earnings. This was based upon a report by Richard Schuster, Ph.D., a vocational rehabilitation expert who testified for plaintiff. He opined that Joshua’s future earnings capacity was reduced, due to his injury, by $10,000 per year over an expected work life period of 38 years.¬† The defense did not offer any testimony to rebut Dr. Schuster’s opinions and this aspect of the award was affirmed on appeal.

Inside Information:

  • The defense sought, unsuccessfully, to question one of plaintiff’s experts, Barry Schifrin, M.D. regarding¬† his censure by ACOG – the American College of Obstetricians and Gynecologists. The censure related to testimony in another case that ACOG concluded was untruthful. The appellate court agreed that the censure – for conduct which Dr. Schifrin denied took place – had insufficient evidentiary value.
  • Ms. Murray testified that she had performed 7,000 deliveries and had never diagnosed a single case of shoulder dystocia. According to her own obstetrical expert, shoulder dystocia occurs in about 1-6% of all vaginal deliveries and plaintiff suggested that Murray should have encountered between 70 and 420 episodes of shoulder dystocia.
  • We reported on another Erb’s case recently, here, in which a different appellate court affirmed a $2,000,000 pain and suffering verdict. The facts in that case – Skelly-Hand v. Lizardi (3d Dept. 2013) – were quite different and the expected period of pain and suffering much longer.




  • Jay Robert Seebacher, MD

    In the course of a vertex delivery (head first), there may sometimes be a critical moment when the head is outside the mother but the baby’s shoulders have not passed through, and one, usually the left, is impinging beneath the pubic arch of the mother. External manual pressure applied to the fundus or dome of the uterus by the anesthesiologist and delivery-room nurse adds to force of the uterine contracture to squeeze the fetus through compressing the shoulders together without stretching the nerves of the brachial plexus, which run from the spinal cord down into the arm. It is the traction on the head which must judiciously and expertly be applied by the obstetrician or midwife, manually and/or with forceps or suction, which may stretch and damage the nerves to some degree. There is no going back, once the head is out, and distocia of the shoulder is a tense situation for the delivery team regardless of their prior experience.
    One thing your excellent compilation does not mention is the subject of fracture of the clavicle. When noted after delivery, it is assumed to have occurred in effect relieving the distocia and allowing passage of the fetus, perhaps sparing the brachial plexus as a consequence.

  • Jay Robert Seebacher, MD

    Continuation of Last Comment:
    When inadvertent fracture of the clavicle is noted after vaginal delivery, it is mandatory to report the event to the Department of Health of New York State as an avoidable complication. The standard of care being that the delivering obstetrician ormidwife should have deliberately or intentionally manually fractured the clavicle before the shoulders were delivered (but after the head was already out), upon realization that the distocia was severe.
    The incidence of inadvertent clavicle fracture is about 4%, the incidence of shoulder distocia is higher, perhaps 15%, the incidence of the practitioner deliberately fracturing the clavicle is very low, and the incidence of nerve injury lower still by far.
    Shoulder distocia is a difficult moment requiring a rapid and difficult decision and technical maneuver for the practitioners. Often good luck is all that keeps more of these cases out of court.