Our law firm handles all types of medical malpractice claims in Maryland. Among these malpractice lawsuits are claims for birth injuries from shoulder dystocia.
Shoulder dystocia is an obstetrical complication that occurs in 30,000 deliveries in the U.S. each year. Shoulder dystocia and brachial plexus injury occur in .5% to 1.5% of all births. Shoulder dystocia stems from complications during childbirth where the child's head can clear the pubic symphysis, but the shoulders require additional medical maneuvers to be correctly delivered. In a shoulder dystocia case, typically one shoulder of the baby becomes trapped behind the mother's pelvis during delivery.
Are all shoulder dystocia cases legitimate malpractice claims? No. But most doctors that have taken a serious look at this issue agree that a significant number of these lawsuits are meritorious.
What happens? The medical literature tells us that birth assistive techniques used in the presence of shoulder dystocia that either pull on the infant's head (forceps, vacuum extraction, manual traction, and fundal pressure are both associated with Erb's Palsy and other brachial plexus injuries.How Medical Malpractice Can Cause Shoulder Dystocia
Shoulder dystocia has been called the OBs Achilles' heel because mistakes made throughout the pregnancy come home to roost. For example, a mistake made during prenatal testing or failing to get a proper history of the mother can be revealed when shoulder dystocia presents itself during childbirth. So it is not just a question of technique and decision making during delivery.
That said, many mistakes are made during the birthing process. Once the obstetricians realize that a baby's shoulder is stuck on the pelvic bone, the OB/GYN has a limited window of opportunity to perform one or more of the well-known maneuvers to free the shoulder and deliver the baby safely.
The "McRoberts maneuver" is an often used technique to resolve shoulder dystocia so that the baby's impacted shoulder may be dislodged without causing injury. In a nutshell, the mother's legs are taken out of the stirrups and raised so that the pubic bone shifts in place. The result of the McRoberts maneuver is that the baby's shoulder slips out more easily. So the McRoberts' maneuver reduces the overall extraction force that is needed for delivery and significantly reduces the contact force behind the symphysis pubis.
None of these maneuvers requires touching the infant's head. But, regrettably, doctors - often some very good doctors - panic when they see the head of the baby is delivered but then retracts against the perineum (the first sign of the problem). What happens is the doctor applies excessive traction laterally to the neck - pushing the head toward either shoulder - leading to shoulder dystocia and other complications.
The physician's fear is that if the shoulder is not quickly dislodged, the baby cannot breathe, and there is a risk of death by suffocation. It is understandable that a doctor would panic when the baby cannot be successfully delivered. It has to be terrifying.
But obstetricians are trained to handle this panic and to employ certain medical techniques that must be employed to manage the labor and reduce the risk of shoulder dystocia. If they do not employ these medical techniques and try to laterally force the baby out, or otherwise take steps outside of the standard of care, the doctors can cause harm to the baby and mother that leads the family to contact a medical malpractice lawyer about a potential malpractice lawsuit.
Sometimes the nurse can make a mistake that causes the child injury. In many cases, the nurse will apply fundal pressure to the infant's shoulder against the pubic bone which will further compound the problem. Therefore, if a nurse deviated from the standard of care by applying fundal pressure, there is wisdom in naming the nurse the facility or hospital as defendants in any lawsuit.What Will the Doctors Medical Malpractice Lawyers Argue?
The arguments that defendants' medical malpractice lawyers in Maryland make in shoulder dystocia cases varies from case to case. One thing is for sure: the doctors will paper the file with excuses. It should be pointed out that not all shoulder dystocia cases are caused by medical malpractice. But in meritorious shoulder dystocia malpractice lawsuits, these are some of the arguments doctors' medical malpractice lawyers make:
Doctor's Argument: Even if the delivering doctor applied excessive force, the doctor did so because there was no alternative.
Plaintiff's Response: Because lateral traction is the only known cause of Erb's palsy in head-first vaginal deliveries, it is a breach of the standard of care to attempt it in light of the fact that the procedure cannot free the shoulder anyway.
Doctor's Argument: The baby was delivered without incident. The baby's complications must have occurred in utero. In support, these lawyers point to the medical literature supporting this proposition.
Plaintiff's Response: The baby's malpractice attorney and their medical expert can counter these articles by pointing out they are not case reports by treating obstetricians. Instead, the articles review medical records of mothers who have had infants who had shoulder dystocia. If the doctor does not admit to how the delivery occurred, the articles become utterly useless.
Doctor's Argument: The shoulder dystocia occurred because the fetus was too big.
Plaintiff's Response: Shoulder dystocia is foreseeable because birth weights can be predicted. Typically, there are signs that forebode a large baby such as the mother previously having large children, gestational diabetes or maternal obesity. A sonogram can also assist in predicting birth weight. If this information leads the doctor to believe that the baby is going to be excessively large, preventive steps should be taken (such as a cesarean section). (A baby weighing more than 8.13 ounces at birth has a five times greater risk of suffering shoulder dystocia during birth than a child weighing less.)Cephalopelvic Disproportion Malpractice
The value of a shoulder dystocia malpractice case largely depends on the type of birth injury involved. The majority of shoulder dystocia cases involve brachial plexus nerve injuries resulting in Erb's palsy. In some instances, however, mismanagement of shoulder dystocia can result in oxygen deprivation and cause serious brain injuries. Listed below are a number of recent verdicts and reported settlements in which negligent handling of shoulder dystocia resulted in Erb's palsy or some other type of nerve injury.
- Henry v Harris (Ohio 2018) $2.75 million: Infant plaintiff reportedly suffered permanent brachial plexus injury during shoulder dystocia when defendant improperly used extreme downward traction and positioned the infant's head at a lateral angel during delivery. Defendant was allegedly negligent in continuing with vacuum extraction instead of ordering an emergency c-section. Injury left plaintiff with significant disability and physical disfigurement.
- Oliva v United States (Michigan 2017) $450,000: Nurse midwife at defendant Federal hosptial allegedly failed to recognize shoulder dystocia during delivery, applied excessive traction on the baby's head, and failed to perform appropriate maneuvers. Baby was diagnosed with Erb's palsy and permanent impairment of left arm. Parties entered into a structured settlement agreement for $450,000.
- McAllister v Lancaster Hosp. (Pennsylvania 2017) $1 million: plaintiffs alleged that defendants (OB/GYN and Hospital) involved in the delivery of the infant male failed to appreciate the risks involved in the pregnancy and failed to properly manage shoulder dystocia resulting in a brachial plexus injury and loss of the use of the right arm. The defendants denied all allegations of negligence and argued that they were forced to act quickly because the umbilical cord became wrapped aroung the baby's neck. Case settled prior to trial for $1,000,000.
- EP v EVMS Medical Group (Virginia 2017) $1.15 million: Baby reportedly suffered brachial plexus injury dury delivery resulting in Erb's palsy and leaving him with limited funtionality in his arm. Birth injury lawsuit was filed alleging that defendant OB/GYN failed to properly anticipate shoulder dystocia and perform a preemptive c-section and then failed to effectively manage shoulder dystocia during delivery. Defendant insistent that she did not cause the injury and only used gentle traction to facilitate delivery, but case eventually settled for $1.15 million.
- Georges v OB/GYN Services (Connecticut 2016) $4.2 million: Baby suffered brachial plexus injury during delivery and was diagnosed with Erb's palsy. Defendant midwife was allegedly negligent in failing to timely diagnose shoulder dystocia in utero. When shoulder dystocia became apparent during delivery, defendant was accused of using excessive lateral traction causing the nerve injury. Erb's palsy left baby with permanent impaired movement of her arm and shoulder. After a 6-day trial the jury awarded plaintiff $4.2 million in damages.
If you believe that you or your child has been injured as the result of a physician's negligence, call Miller & Zois at 800-553-8082 or click here for a free online consultation.
Plaintiff's' Shoulder Dystocia Medical Literature
Below are some medical journal articles and ACOG guidelines birth injury lawyers may want to show to their experts:
- Gurewitsch Allen ED, Allen RH, et. al: Improving shoulder dystocia management and outcomes with a targeted quality assurance program. Am J Perinatol. 2017;34:1088-96.
- Am. College of OB/GYN, Practice Bulletin, Gestational Diabetes Mellitus, Number 180, 2017
- Crofts JF, et al. Prevention of brachial plexus injury-12 years of shoulder dystocia training: An interrupted time-series study. Brit J Obstet Gynaec. 2016;123(1):111-8.
- Tamura A, et. al: Anonymous Strain rate effect on the tensile behavior of fiber bundles isolated from nerve root. Proceedings of sustainable research and innovation; 2015 May 5 (pp. 80-85)
- Gonik B, et. al: Effect of clinician-applied maneuvers on fetal brachial plexus strain during shoulder dystocia delivery. Am Coll Obstet Gynecol. 2010;189(6): S200.
- Allen RH, et. al: Comparing mechanical fetal response during descent, crowning, and restitution among deliveries with and without shoulder dystocia. Am J Obstet Gynecol. 2007;196(6):539.e5.
- Allen RH. On the mechanical aspects of shoulder dystocia and birth injury. Clin Obstet Gynecol. 2007;50:607-23.
- Overview of medical malpractice cases in Maryland
- Overview of typical birth injury claims
- Medical malpractice frequently asked questions
- Example shoulder dystocia lawsuits