Injuries to the brachial plexus, the bundle of nerves that control the arm and hand, are typically caused by trauma. In adults, car accidents and sports injuries are common causes. In infants, brachial plexus injuries are often cause by birth-related trauma.
In some cases, a brachial plexus injury may be caused by a very strong contraction. In other cases, brachial plexus injuries may occur when the baby gets lodged in an unusual position in the womb or in the birth canal. These injuries are generally unavoidable. Unfortunately, many brachial plexus injuries are caused by the actions of doctors and other medical care staff during delivery. When the negligence of a doctor or other medical care provider causes your child’s injury, you and your child may be entitled to compensation for the damage.
Medical Malpractice and Negligence
The basis for a medical malpractice lawsuit (a suit against a medical care provider) is typically negligence. That’s a legal term that means the doctor, nurse, or other medical staff did not meet the accepted standard of care in treating your child. The exact method of determining the standard of care varies from state to state, but usually involves testimony from other doctors who work in the same field about what the best practices are and why your care provider’s actions did not meet that standard.
In order to win compensation, you’ll need to prove several elements. First, your doctor or other relevant hospital staff must have had a duty to you and your child. This may be called a “doctor-patient relationship.” The medical care team creates a doctor-patient relationship when they start treating you, so this element is usually easy to prove.
Next, you’ll need to show that your child was injured. In the case of a brachial plexus injury, that may involve showing medical records for the treatment your child needs. It may also involve testimony from doctors and other medical care staff that have treated your child for the injuries in question.
Third, you’ll need to show that the doctor or other care provider acted negligently. As mentioned above, that will involve having other medical experts testify about what the appropriate standard of care is. Finally, you’ll need to show that the care provider’s negligence caused your child’s injury. This is called “causation” and is often one of the most difficult elements of the case. If your doctor acted negligently but didn’t cause injury to your child, you don’t have a case. If your doctor acted negligently but your child’s injury was caused by something else, you don’t have a case. You have to show a clear link between the negligence and the injury.
Causation in Brachial Plexus Injury Cases
Brachial plexus injuries are often caused by trauma during delivery. Brachial plexus injuries occur when the baby’s head is pushed to the side or when too much pressure is put on the baby’s arms or shoulders during delivery. That can happen when the baby is large and can’t pass through the birth canal easily or when the baby is born feet-first (breech). The baby can’t stay in the birth canal for too long because of the risk of oxygen deprivation, so your doctor may pull on the baby or use forceps or vacuum suction to get the baby out. Pulling on the baby may strain the baby’s neck and shoulders and cause brachial plexus injury.
Doctors and nurses are trained to deliver a baby as safely as possible, but they may pull too roughly or in the wrong direction during the stress of a difficult delivery. In addition, a doctor or other medical care provider may fail to realize that the baby’s shoulders are stuck in the birth canal and attempt to pull the baby out instead of performing an emergency cesarean section.
To prove causation in a brachial plexus injury case, you’ll show that your doctor pulled on the baby’s head, shoulders, or legs or used forceps or vacuum suction to speed up delivery. You’ll then show that your child suffered a brachial plexus injury and that the doctor’s actions were likely the cause.
Compensation for Brachial Plexus Injuries
If your child is injured by medical negligence, your family may be entitled to two different types of compensation: economic and non-economic. Economic compensation refers to monetary losses caused by the injury. That may include past and future medical expenses. It may also include lost income for your child – income that your child could have earned without the injury. Non-economic damages refer to losses that aren’t monetary, such as the pain and suffering your child experienced as a result of the injury. In rare cases, you may also be entitled to damages for “loss of consortium,” or loss of time and enjoyment with your child due to the injury.
Many medical negligence cases never go to trial. Instead, they are settled before a trial happens. Your attorney will help you negotiate any settlement offer to make sure you’re getting fair treatment. If your case is very strong, the settlement offer will be similar to what you would receive if you won at trial. If your case is weaker, you may be offered less than that amount. You’ll need to discuss your options with your attorney and your family to decide whether to accept a settlement. If you accept, you will give up the right to sue for more money. If you don’t, you’ll be stuck with the decision of the jury at the trial or on appeal.
What To Do
If you believe that your child suffered a brachial plexus injury as a result of medical negligence, you should speak to an experienced local attorney as soon as possible. The law limits the amount of time you have to file a lawsuit, so act quickly. Your attorney can help you gather the medical evidence you need and will find the necessary expert witnesses to testify about the standard of care you and your child should have received.
Reputable law firms generally offer a free consultation and case evaluation, so you can speak to an experienced attorney about your case without paying anything at all. You can hear a reliable opinion about your case and you can visit multiple firms to find a lawyer you trust. In addition, most law firms take medical malpractice cases on a contingent fee basis. That means their fee is a percentage of your damage award. If you don’t win anything, you don’t pay anything. Remember to ask about the fee structure of any law firm you consult about a potential medical malpractice case.