Successfully claiming compensation for an Erb´s Palsy birth injury can be particularly difficult, as Erb´s Palsy injuries are often the result of a medical emergency such as shoulder dystocia – a situation in which the baby´s shoulder gets stuck behind the mother´s pubic bone – or a breech birth.
In resolving the medical emergency or breech birth, it may have been necessary for a healthcare professional to use significant force to deliver your baby. The outcome of an Erb´s Palsy medical negligence claim will often depend on whether “at the time and in the circumstances” the force used was excessive and caused a permanent injury.
This article explains a little about how Erb´s Palsy injuries occur and the process for making Erb´s Palsy medical negligence claims when the injury to your child is due to a breach in the accepted standard of care. For specific legal advice about claiming compensation for an Erb´s Palsy birth injury, it is recommended that you speak with a solicitor at the first possible opportunity.
Erb´s Palsy: Medical Negligence or Not?
Not every Erb´s Palsy birth injury is due to medical negligence. Large infants, small mothers and breech births can result in complications which may sometimes result in an Erb´s Palsy injury. Some Erb´s Palsy birth injuries – particularly neurapraxia birth injuries – can often heal themselves within three months of a child´s life and, as there is no permanent damage, it would not be possible to claim compensation for an Erb´s Palsy birth injury.
The circumstances in which a claim for Erb´s Palsy medical negligence would most likely be successful include:
- When a medical emergency has been mismanaged
- When forceps or vacuum delivery tools have been misused
- When a medical emergency could have been predicted and the option of a C-Section delivery was not offered to the mother
Even in these circumstances, it would require the opinion of an independent medical expert to support a claim for Erb´s Palsy medical negligence, as it would have to be demonstrated that your child´s injuries were due to a poor professional performance by a healthcare professional which “on the balance of probabilities” resulted in your child suffering an avoidable Erb´s Palsy injury.
How to Claim Compensation for an Erb´s Palsy Birth Injury
To determine whether your child´s injuries could have been avoided “at the time and in the circumstances”, you will need to speak with a solicitor. The solicitor will ask you to authorise access to your child´s medical records – which will be reviewed by an independent medical expert – and he or she will instigate an investigation at the hospital at which your child was born.
If the medical expert is able to establish “causation” and “liability”, their findings will be considered alongside the outcome of the hospital investigation to determine whether you have an Erb´s Palsy medical negligence claim for compensation which is worth your while to pursue. If so, your solicitor will send a “Letter of Claim” to the hospital or NHS Trust to which it is attached, advising that you are claiming compensation for an Erb´s Palsy birth injury on behalf of your child.
The hospital or NHS Trust has twenty-one days in which to acknowledge the Letter of Claim and a further ninety days to respond to it. The process for claiming compensation for an Erb´s Palsy birth injury can then take one of two paths depending on the response to your Erb´s Palsy medical negligence claim.
Is a Court Hearing Inevitable to Resolve the Claim?
Not necessarily. If liability for your child´s birth injury is acknowledged by the NHS Trust, your solicitor will start settlement negotiations with the NHS Litigation Authority. The settlement of compensation for an Erb´s Palsy birth injury should account for your child´s physical and emotional trauma, the reduction in their quality of life and any future loss of earnings they may experience due to their disability.
If your Erb´s Palsy medical negligence claim is contested, your solicitor may advise that you issue court proceedings. This will depend on the strength of evidence supporting your claim compared to the strength of the NHS Trust´s defence. However, even if court proceedings are issued, a court hearing is not inevitable to resolve the claim. Many birth injury compensation claims are settled prior to a court hearing being necessary, and your solicitor will only suggest this course of action as a last resort.
Even though a court hearing to resolve your claim may not be inevitable, you will still have to attend court when a settlement of your claim is agreed. All settlements of compensation for an Erb´s Palsy birth injury made on behalf of a child have to be approved by a judge to ensure that they are in the child´s best interests. Settlement hearings usually include an apology from the hospital or NHS Trust for the errors that were made during the delivery of your child.
Call us for Specific Legal Advice about Compensation for an Erb´s Palsy Birth Injury
No two claims for Erb´s Palsy medical negligence compensation are the same due to the level of injury that your child has sustained and the impact it will have on their emotional and financial wellbeing as they grow older. Consequently it is advisable to seek specific legal advice at the first possible opportunity, and for this reason we have established a Medical Negligence Advice Bureau.
Our Medical Negligence Advice Bureau allows you to speak directly with an experienced medical negligence solicitor who will understand the emotional trauma that you are experiencing, and your concerns about your child´s future. The solicitor will not be able to advise you immediately if you have a viable Erb´s Palsy medical negligence compensation claim, but will be able to answer any questions you may have about claiming compensation for an Erb´s Palsy birth injury.
You are invited to call our Medical Negligence Advice Bureau at any time for discrete and practical legal advice in plain English that will help you better understand the process of claiming compensation for an Erb´s Palsy birth injury. Our service is provided free of charge, and without any obligation on you to proceed with an Erb´s Palsy medical negligence claim.