News: A pregnant patient was delivering her child when the baby’s shoulder became obstructed by the mother’s pelvis. In an attempt to dislodge the baby’s shoulder, the physician used excessive force, causing shoulder nerve damage known as a brachial plexus injury. The baby suffered permanent Erb’s palsy as a result.

The patient and her child brought suit years later, alleging that the physician breached the standard of care through use of excessive force. The jury agreed and awarded the plaintiffs $3 million in damages, plus $1.5 million in prejudgment interest.

Background: In 2008, a healthy, pregnant patient was delivering her child when the child’s shoulder became obstructed by the mother’s pelvis. The obstetrician/gynecologist physician attempted to dislodge the baby’s shoulder but was initially unsuccessful. The physician subsequently applied additional force, which successfully dislodged the baby’s shoulder but also caused nerve damage known as a brachial plexus injury. As a result, the child suffered from permanent Erb’s palsy, or paralysis of the arm.

The child’s mother, individually and on behalf of the child, brought suit in 2014 against the physician and medical practice, alleging that the physician used excessive force in attempting to dislodge the baby’s shoulder and that this constituted a breach of the standard of care. The mother additionally alleged that the physician failed to properly inform her of the risks of the procedure, and that she would not have agreed to it if she had been fully informed of the risks connected to the delivery. During the seven-day trial, the plaintiffs offered testimony from two medical experts: one testified on the applicable standard of care for obstetricians, and the other testified about causation and the child’s injuries.

The jury deliberated for about three hours before returning a verdict for the plaintiffs. The jury concluded that the physician breached the standard of care when he performed the delivery, and the jury awarded the plaintiffs $3 million in damages. Due to procedural delays, the trial was not held until 2017, nine years after the negligent delivery; in addition to the $3 million, the court awarded $1.5 million based on the prejudgment interest accrued since the injury occurred.

The defendants appealed the verdict to the state supreme court. However, the court affirmed the jury verdict and award. The defendants attempted to challenge the admission of the plaintiff’s standard of care expert testimony and the plaintiff’s causation expert testimony, alleging that the testimony was inadmissible because it was based solely on the fact that the child suffered an injury. The state supreme court found that the standard of care expert properly relied on the medical records, eyewitness accounts, and his nearly 30 years of experience as an obstetrician/gynecologist in forming his opinion. The state supreme court also determined that statistical testimony about the rarity of brachial plexus injuries was permissible and directly rebutted the defendants’ trial theory that the mother’s endogenous forces caused the injury.

What this means to you: While this case is yet another example of a negligent delivery, the factual circumstances and legal issues presented are different. In this case, the obstetrician/gynecologist did not fail to diagnose or timely act but instead used a technique and excessive force that caused the child’s permanent injury.

The plaintiff alleged that the physician failed to inform her of the risks of the procedure — which reveals an important lesson about providing patients with sufficient information to provide informed consent to a procedure. Physicians and care providers have an obligation to adequately inform the patient about the likelihood of success and the risks associated with a proposed treatment or procedure, and the failure to do so may constitute medical malpractice. This is not set in stone, and a physician or care provider is not required to explain minor risks that are unlikely to occur. Risks of death, serious injury, or significant potential complications should be explained to the patient prior to the procedure or treatment. If a physician or care provider has doubts as to whether a fact or risk rises to the level of materiality, it is better to err on the side of caution and to inform the patient of the risk. Documenting that a patient has been fully informed, including the specific risks and dangers, may later prove invaluable in overcoming a patient who was injured but actually informed of the risks and dangers.

Shoulder dystocia, a not uncommon complication during vaginal deliveries, can often be predicted based on a series of pre-existing conditions or risks such as maternal diabetes, macrosomia, or a higher-than-normal estimated fetal weight. There are multiple maneuvers that physicians and nurses can use to release the entrapped shoulder without damage to the brachial nerve, or other injuries such as fracture or dislocation of the humerus or clavicle.

As in the first case, teamwork and training of both physicians and nurses is essential. Many departments require that all staff participate in drills using life-size dummy models. This prepares everyone to manage a shoulder dystocia quickly and successfully using acceptable maneuvers to release the entrapped arm. It is preferable to start with the least traumatic maneuver — which just requires that the mother be repositioned — and then advance to more aggressive procedures such as applying mild pressure to one side of the uterus, internal maneuvering of the fetus, or reaching in and manually releasing the entrapped arm. Once the head is on the perineum and a dystocia is recognized, team members assemble and assist the supervising physician or midwife to complete the delivery. Because the mother cannot refuse the maneuvers despite the risks inherent in all of them, informing her before the dystocia occurs is crucial, especially if there are one or more risk factors.

Even under the most ideal circumstances, with all precautions taken, injures can still occur and — not uncommonly — are recognized after the infant has been discharged. It is prudent for the hospital pediatrician who discharges the infant to recommend to the parents that the infant be seen by an orthopedic physician if a shoulder dystocia occurred during delivery.

Another lesson to be learned from this case is that while an injury may occur, litigation does not necessarily immediately follow. If the injured party is a minor, such as in this case, the party is permitted but not required to bring the litigation right away. A state’s statute of limitations permits a certain amount of time whereby an injured party is required to initiate the litigation, but this time period is “tolled,” or paused, while the party is a minor. Thus, if an infant is injured during birth, the child may wait until he or she is 18 years old and then bring a lawsuit against the physician or care provider. While the child in this case did not wait 18 years, the family did wait approximately six years until after the injury to start the litigation, which was finally resolved approximately nine years after the injury.

For physicians and care providers, there are important aspects to consider when presented with such circumstances. One of the most important items to facilitate anticipated future litigation is maintaining thorough records, as memory necessarily fades over time. Contemporaneous documents are vital to defend against medical malpractice claims, and it is likely that many of the parties involved will have hazy memory — or even no memory whatsoever — of actions and decisions taken 10 years prior.

Medical records and notes taken during that time are crucial, and physicians and care providers should create and implement policies ensuring that such written documentation is thorough and preserved for years, particularly for records in which a patient has suffered an unexpected or undesired outcome.


Decided on Feb. 4, 2019, in the Supreme Court of the State of Delaware; Case Number 133.