Proving a Brachial Plexus Palsy (Erb’s Palsy) Case

In any personal injury case, including in medical malpractice cases such as those involving brachial plexus palsy (Erb’s palsy), the burden of proof rest on the plaintiff (the victim). The plaintiff, the person filing the case, must show evidence of negligence (carelessness) and damages. In a brachial plexus palsy (Erb’s palsy) case, the plaintiffs are typically the parents of the child who was injured at birth as well as the injured child. The plaintiffs must show that the doctor, hospital or other medical professionals were at fault and therefore, caused the child’s injuries.

Proving the Basic Elements of Negligence

The law views medical malpractice as a breach of contract based on healthcare or other professional services that were or should have been provided by a healthcare provider to a patient. In order to prove medical negligence (carelessness) in a brachial plexus palsy (Erb’s palsy) case in New York, an attorney representing the plaintiff must prove the following elements:

Duty of care: Plaintiffs must prove that the healthcare provider had a duty of care to provide accepted levels of care to the patient. Healthcare providers owe their patients the duty to act reasonably as a competent physician would under similar circumstances. Doctors and medical professionals have a duty to meet the applicable standard of care.

Breach of duty: Plaintiffs must also establish that a healthcare provider breached or violated his or her duty to the patient by failing to meet the applicable standard of care. This is typically done by presenting evidence, expert testimony and documentation.

Injury: The plaintiff must show that the injury was suffered as a result of such medical negligence (carelessness). In a brachial plexus palsy (Erb’s palsy) case this may mean showing that the child suffered an injury, permanent disabilities, physical loss of function, loss of earning capacity and reduced chance of recovery as a result of the doctor’s negligence, etc.

Causation: The plaintiff must also prove that the injury that led to the child’s brachial plexus palsy (Erb’s palsy) was directly caused by the healthcare provider’s failure to meet the applicable standard of care. An attorney must establish a clear and compelling connection between the child’s injury and the doctor’s error.

In a brachial plexus palsy (Erb’s palsy) case, the plaintiff doesn’t need to prove negligence (carelessness) beyond a reasonable doubt, just that the standard of care was most likely violated. This may also mean proving that the brachial plexus palsy (Erb’s palsy) and the underlying nerve injury would not have occurred were it not for the medical professional’s actions or lack of action.

An experienced New York brachial plexus palsy (Erb’s palsy) lawyer will be able to examine medical records, conduct interviews of witnesses and consult medical experts to determine that an error occurred, which should have been prevented. These types of evidence will help bolster the case and present the evidence necessary to fulfill the plaintiff’s burden of proof in a brachial plexus palsy (Erb’s palsy) case.

Common Examples of Negligence

Here are some of the most common examples of how medical negligence (carelessness) may lead to brachial plexus palsy (Erb’s palsy):

• A doctor provides inadequate prenatal care that fails to properly diagnose or treat risk factors that may lead to brachial plexus palsy (Erb’s palsy) such as breech position, gestational diabetes, a fetus that is larger than average, etc.
• An obstetrician fails to order a timely Cesarean section (C-section) despite risk factors being present.
• A delivery room doctor fails to perform an emergency C-section.
• An obstetrician fails to execute the necessary techniques or maneuvers to reposition the baby and safely get him or her out of the birth canal.
• A delivery room doctor uses birth-assistive tools such as vacuum extractors and forceps improperly or incompetently exerting excessive force on the baby’s head, neck or shoulders.

Contacting an Experienced Lawyer

If your child has brachial plexus palsy (Erb’s palsy), he or she may be able to receive compensation that helps pay for medical expenses, lost income, cost of therapy, future treatments, permanent injuries, disabilities, past and future pain and suffering, etc.

The experienced New York personal injury attorneys at the Law Offices of Kenneth A. Wilhelm can help you better understand your legal rights and options, and also fight hard to recover just compensation for you. One of our clients secured a $2,850,000 verdict that was reduced by the appeals court to $1,846,000 because the verdict was so large. This was the highest amount upheld by the appellate (appeals) courts for many, many years. In addition we recovered $1,400,000 for a newborn who lost motion in the arm during birth due to doctors applying incorrect force on the baby’s head. Also, one of our clients obtained a verdict for $43,940,000 and another of our clients got a verdict for $23,500,000, both in medical malpractice cases.

We have seen many cases where New York City Health and Hospital Corporation facilities deliver babies who are born with cerebral palsy or brachial plexus palsy (Erb’s palsy) stemming from negligence (carelessness), and/or medical malpractice in the labor and delivery etc. of the children.

The following list identifies some of these hospitals (operated by New York City Health and Hospital Corporation):

• Jacobi Hospital aka Bronx Municipal 1400 Pelham Parkway South Bronx, New York 10461 718-918-5000
• Lincoln Hospital 234 East 149th Street Bronx, New York 10451 718-579-5000
• North Central Bronx Hospital 3424 Kossuth Avenue Bronx, New York 10467 718-519-5000
• Coney Island Hospital 2601 Ocean Parkway Brooklyn, New York 11235 718-616-3000
• Kings County Hospital 451 Clarkson Avenue Brooklyn, New York 11203 718-245-3131
• Woodhull Hospital 760 Broadway Brooklyn, New York 11206 718-963-8000
• Bellevue Hospital 462 First Avenue New York, New York 10016 212-562-5555
• Harlem Hospital 506 Lenox Avenue New York, New York 10037 212-939-1000
• Metropolitan Hospital 1901 First Avenue New York, New York 10029 212-423-6262
• Elmhurst Hospital 79-01 Broadway Elmhurst, New York 11373 718-334-4000
• Queens Hospital Center 82-68 164th Street Jamaica, New York 11432 718-883-3000

Please contact us TOLL FREE 24 hours a day, 7 days a week at 1-800-WORK-4-YOU (1-800-967-5496). WE CAN EVEN COME TO YOU. There is no attorneys’ fee unless we recover money for you. We can also help with personal injury and/or medical malpractice cases in New York, New Jersey, Connecticut, Pennsylvania, or Florida. If you have been seriously injured in any of the 50 U.S. states, please call us and we will try to help you with your case.

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