Erb's Palsy Lawsuits in New York: When It Is Malpractice
Erb's palsy is an injury to the brachial plexus, the nerve bundle running from the neck into the shoulder and arm. In a newborn it usually follows a difficult delivery in which the baby's shoulder became caught behind the mother's pubic bone. Some of these injuries are the result of a departure from accepted obstetric practice. Some are not. A New York claim depends entirely on which.
Families are frequently told two contradictory things in the same week — that it will resolve on its own, and that nothing could have prevented it. Both may be true. Neither is a reason to stop asking.
What happened during the delivery
The complication is called shoulder dystocia: the head delivers, and the anterior shoulder does not follow. It is an emergency, and obstetric practice has a defined response — repositioning the mother's legs, applying pressure above the pubic bone, internal rotational maneuvers, delivering the posterior arm, changing maternal position. What these have in common is that they relieve the obstruction without pulling harder on the baby's head.
The mechanism of injury is stretching of the nerve roots where the neck meets the shoulder. Sustained downward or lateral traction on the head while the shoulder remains fixed is what stretches them.
Where the claim comes from — and where it fails
A New York medical malpractice claim requires a departure from accepted standards of care that caused the injury. In these cases the alleged departure is usually one of three things:
- Excessive traction. Continuing to pull on the head rather than performing the recognized maneuvers.
- Failure to anticipate. Known risk factors were present — a large estimated fetal weight, maternal diabetes, a previous shoulder dystocia, a prolonged second stage, an assisted delivery — and the risk was not identified, discussed, or planned for.
- Failure to counsel. Where the risk was foreseeable, the question of a caesarean delivery was never genuinely put to the mother.
The defense is well developed and it succeeds regularly. It is that the forces of labor itself can injure the brachial plexus without any traction by the delivering physician, and that brachial plexus injuries are documented in deliveries where no dystocia occurred at all — including in caesarean births. That argument is why these cases turn on the contemporaneous record rather than on the diagnosis.
The record decides it. The delivery note, the timing and sequence of maneuvers, which shoulder was anterior, the nursing notes, the fetal monitoring strips, the estimated versus actual birth weight, and the prenatal chart. Those documents were created before anyone knew there would be a claim, and they are more persuasive than anything said afterwards.
The deadlines, which are shorter than families expect
New York gives two years and six months for medical malpractice under CPLR § 214-a — shorter than the three years for ordinary negligence.
For a child, CPLR § 208 extends that period during infancy, but for malpractice the extension is capped: the action generally cannot be brought more than ten years after the act complained of. Ten years sounds generous when a child is two. It is not generous when the permanent extent of the deficit only becomes clear at seven or eight, which is common.
And the trap: if the delivery was at a public hospital — a New York City Health + Hospitals facility, a county facility, a state facility — a notice of claim is generally due within 90 days under General Municipal Law § 50-e. Infancy extends the outer limit for asking a court's permission to file late, but it does not entitle you to it. Families reasonably assume a child's claim waits until adulthood. Against a public hospital, that assumption ends the case.
In practice this means the records have to be obtained and read by an expert before anything is filed, which takes months. Start earlier than feels necessary.
What these cases are compensating
Many brachial plexus birth injuries recover substantially in the first months of life. Where they do not, the claim addresses a lifetime: physical and occupational therapy, orthopedic and nerve surgery where indicated, adaptive equipment, the reduced use of a dominant arm, the effect on schooling and on future work, and the pain and loss of enjoyment of life the child will carry.
Any settlement for a child requires a judge's approval under CPLR § 1207, and the court decides how the funds are held — frequently a structured settlement that pays out over the child's adulthood rather than a sum handed to the parents. See also our birth injury page.
Common questions
Does an Erb's palsy diagnosis mean the doctor did something wrong?
No. Brachial plexus injuries occur in deliveries where care was entirely appropriate, and the defense relies on exactly that. The claim depends on what the delivery records show about how the shoulder dystocia was managed.
How long do we have to bring a claim in New York?
Medical malpractice is two years and six months, extended for a child's infancy but generally capped at ten years from the delivery. If the hospital was a public one, a notice of claim is generally due within 90 days — a far shorter and far less forgiving deadline.
What if the injury seems to be improving?
Many do improve, and that is genuinely good news. It also means the eventual extent is not known for years, which is a reason to have the records reviewed early rather than waiting to see how it settles.
What records matter most?
The labor and delivery notes, nursing notes, fetal monitoring strips, the prenatal chart including estimated fetal weight and any diabetes, and the newborn examination. Request the complete file rather than a summary.
Who receives the money in a child's case?
The court does. A judge approves the settlement and directs how it is held for the child, commonly through a structure paying out at or after eighteen. Parents do not receive the funds to manage.
This page is general information about New York law. It is not legal advice, and reading it does not create an attorney-client relationship with Davidov & Cohen Law. To talk about your own situation, tell us what happened.
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