Shoulder Dystocia and Erb's Palsy: What the Delivery Records Show

Two medical terms sit at the center of this chapter. One is shoulder dystocia. The other is Erb's palsy. A lot of people want to know what those words mean, and they deserve a plain answer before anything else. Shoulder dystocia is what we call a baby getting stuck during the birth process. Erb's palsy is a nerve injury to the baby's arm. It can leave the arm weak or paralyzed, and in the worst cases the paralysis is permanent.

These are cases I know well. I have had so much experience with them that I am probably one of the lawyers who has done the most of them in my career. The last chapter made the point that the medical records are the Bible in a malpractice case, and a delivery is no different.

When I want to know what happened to a baby who got stuck, the delivery records are where I start. The records that come afterward tell me what the child needs. This chapter follows that order. I will walk you through the two things I look at first, what it tells me when a maneuver is missing, and why you do not pull on a baby's head. Then I will say what Erb's palsy is in plain words, and I will tell you about a phone call from a former client.

A baby who gets stuck during the birth process, what we call shoulder dystocia, is a moment inside a delivery, and the doctors in the room are trained for it. The doctors who are trained to get a baby unstuck are trained to do certain maneuvers. A maneuver, as I use the word here, is one of the specific moves a doctor is taught to make to free the baby.

A baby getting stuck is not the same thing as malpractice. A bad outcome does not necessarily mean medical malpractice. Every birth carries risks, and an injury that comes from a risk is not automatically malpractice.

The law asks a different question. The term we use is the standard of care, which means the nationally recognized guidelines of what doctors should do and shouldn't do. We prove malpractice by having other doctors come into court who know what the standards of care are and can tell the jury how those standards were violated or not adhered to. Then we have to prove that the breach of the standard of care caused the injury in question. Chapter 2 builds that idea out in full. Here I only need its shape, because everything I look for in a delivery record is a way of asking that question.

Here is the order I read a delivery record in. The records will show whether or not the baby is big, because a larger baby is more likely to get stuck. So the first thing we look at is what the baby weighed.

The second thing is what the doctors did once the baby was stuck. As I put it, "The doctors who are trained to get a baby unstuck are trained to do certain maneuvers. These are nationally recognized maneuvers to get a baby unstuck, and they have to be done in a very calm, cool, non-panic way."

The weight and the maneuvers answer two different questions. A big baby may help explain why a baby got stuck. Whether the doctors then did what they were trained to do is another matter, and the second thing I look at is how I get to it.

Let's suppose a family brings me the records from a delivery where the baby got stuck. I go to the weight first. Then I read what was done. A delivery is charted, the times and the actions, when a nurse comes in and when she goes out, when a doctor comes in and when he goes out. By looking at the medical records, I can tell whether the doctors performed these recognized maneuvers in a way that would get the baby unstuck, so that you don't cause the Erb's palsy. Chapter 8 describes how an expert builds the timeline from those entries, and I will not repeat it here.

Now let's suppose the records show that the maneuvers were not done properly, or were not done at all. What does that tell me? In my view, it means the doctor did the thing you don't want to do. "You don't want to pull on that baby's head to get that baby out. Because if you pull on the baby's head to do that, you're going to cause terrible, terrible damage."

Notice the words I chose. In my view. That is a reading, and a reading is where a question starts. I can read a chart, but a lawyer does not decide on his own whether the standard of care was met. So we consult with doctors who are practicing obstetricians, or other specialists, who go through the records together with us. They determine whether the standards of care were met, whether any violation of them caused the injury, and the severity and permanency of the injury.

All of that takes a lot of work on the front end. I can often tell a caller on the first conversation that there is no case. Telling someone that there is one is different, and it takes months of investigation before we are able to say so.

The chart has another side. As I said earlier in this chapter, every birth carries risks, and an injury from a risk does not necessarily mean medical malpractice.

Erb's palsy is a specific type of birth injury, and it is the injury those maneuvers are meant to avoid. It is a nerve injury to the baby's arm. It can leave the arm weak or paralyzed, and in the worst cases the paralysis is permanent. The recognized steps are done in a calm way so that you don't cause it.

How serious it is for a particular child, and whether it lasts, are questions for the doctors who go through the records with me, because severity and permanency are part of what they determine. A definition cannot answer them. A child's records can.

Putting the delivery chart together with the injury gives me three questions to carry to those doctors. What did the baby weigh? Were the recognized maneuvers done, and done properly? And if they were not, did that cause the injury this child has? The first two I can read from the chart. The third takes the practicing doctors, and it takes time.

The delivery records are one set. A second set comes afterward, and it is the set that matters most.

Many of these children go to specialists. In Baltimore we have the Kennedy Krieger Institute, which specializes in dealing with children who have these types of injuries. Those records tell me the diagnosis, and they tell me the therapies the child needs, occupational therapy and speech therapy among them. I read them to see whether the child needs specialized equipment, and whether the child needs care in the home.

All of these records are important because they help me build a case. With that information I consult a specialized expert we call a life care planner, someone who can take it and project out into the future the medical care and the services a child with a lasting injury, as in cerebral palsy, is going to need. Chapter 14 shows what that projection becomes when a case is valued.

I want to tell you about a client. I represented her when she was a baby, and she had Erb's palsy. Several months ago I heard from her. She called to tell me that, because of what I was able to do for her, she was able to go to college, she was able to get a good job, and she had a child of her own. I don't know whether she found me on the internet or heard me on the radio. She wanted to check in and let me know that everything with her was all right.

It choked me up. "I really got emotional about that." After the call I had to stop for a moment, because, as I put it, "I really had to take a moment to pause because that was so meaningful."

Even after all that time, I knew who was calling. "You remember all your clients." I don't know why memory works that way. What I thought was "good job Frank. I helped somebody and they really appreciate it." It was a surprise, and a wonderful one.

Families who call me about a birth injury have had their lives turned upside down. A call like this one tells me something else, that what I did for a baby was still part of her life twenty years later.