Erb's Palsy Claims

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Erb’s Palsy occurs when a baby’s brachial plexus nerves (nerves in the neck) are damaged. This can happen if excessive force is applied to a baby’s head, neck or shoulders during birth. Erb’s palsy can also occur if a baby’s shoulders become trapped in the birth canal (this is known as shoulder dystocia). Babies with Erb’s Palsy can suffer temporary or permanent paralysis of the arm.

There may be a claim for medical negligence where a baby suffers Erb’s Palsy if those treating the mother should have anticipated that shoulder dystocia was a risk and arranged a caesarean section. Failures in this area can include failing to estimate a baby’s size, not diagnosing gestational diabetes which can lead to larger babies and not diagnosing a pelvic abnormality in the mother. There may also be a claim where guidelines were not followed during the birth and excessive force was used to deliver the baby. We are specialists in these types of claims and have recovered significant compensation for clients injured at birth.

Erb’s Palsy Compensation

Compensation can include sums to cover the future needs of the injured child such as any future treatments to try and improve nerve damage and restore muscle function, care, therapies and equipment. The amount of compensation will vary from case to case and will depend on the severity of injury as well as other factors. We will be able to advise you fully about what may be claimed.

If you or a family member is concerned about medical treatment in this area, please contact us to discuss how we can help.

Your claim - why us?

Your case will be investigated by our specialist lawyers, led by a partner. We are well versed in the legal issues involved with birth injury claims and the complexities surrounding the needs of children who have been injured. We work closely with leading experts to assess the strength of a claim and the long term needs of the child, including expert paediatric consultants and paediatric neurologists. We understand that the full extent of a child’s disabilities are not always apparent until they are older and we work with experts to ensure that the all aspects of a child’s requirements are understood before a claim is finalised. We will advise upon options to seek funds for early interventions and rehabilitation not available on the NHS where possible.

We understand the devastating impact upon families where there has been an injury to a baby and will provide a highly sensitive and supportive service.

Our lawyers are recognised by the Legal 500 and Chambers directories as specialists in clinical negligence cases. Our team includes lawyers with specialist clinical negligence accreditations from Action against Medical Accidents (AvMA) and the Law Society.

Frequently Asked Questions

What is Erb's Palsy and what causes it?

Erb’s Palsy is where the brachial plexus nerves (nerves from the neck to the arm) are damaged. There are 5 of nerves that supply movement and feeling to the arm (the brachial plexus) and one or all of them can be damaged. The affected arm can be partially or completely paralysed.

What are the long-term effects of Erb's Palsy?

Recovery will depend on the extent of the damage to the nerves. If these are bruised or swollen then the paralysis may resolve. If the damage is extensive and for example nerves are torn and cannot be repaired then paralysis can be permanent.

What are the typical signs of Erb's Palsy?

A typical sign is that a child’s elbow does not bend and their hand is held in a backwards turning position (known as a ‘waiters tip’ position). Other signs can include a limp hand which cannot grip and numbness in the arm.

Is there a time limit for bringing a claim for Erb's Palsy?

In England and Wales, if a child is injured by negligence (including negligence that happened prior to or during their birth), they usually have until their 21st birthday to formally begin a claim at Court.

There are exceptions to this rule. If someone does not have ‘mental capacity’ to bring a claim as an adult there is usually no time limit. If they gain mental capacity at some point during adulthood, they will have three years from that point to begin their claim.

In rare cases, it may be possible to argue that the time limit should not be applied for an adult, even if they have mental capacity (although this is unusual).

It takes time to investigate a claim and, therefore, we advise that you contact us at the earliest opportunity; when all of the evidence is still available and the events are fresh in your mind.

However, we also consider older cases and have previously succeeded in claims for adults who were injured during their birth.

Can I bring a claim on behalf of a child or a family member who is not able to do it themselves?

If a child (or an adult who does not have mental capacity) is injured by negligence, a family member or other trusted person can act as a ‘Litigation Friend’ and bring the claim on their behalf.

Usually claims relating birth injury are brought by one of the child’s parents, who take on the role of ‘Litigation Friend’.

What is the process for bringing a claim?

We start by obtaining evidence including medical records, witness statements and expert evidence to prove that the child’s disabilities were caused by medical negligence.

We also calculate the amount of compensation that can be claimed. Typically, this involves instructing experienced experts to advise on all aspects of your child’s needs, in order to maximise the level of compensation. We then try to reach a financial settlement with the Defendant (the organisation or individual legally responsible for the negligent care).

In some cases settlement is agreed at an early stage. In other circumstances, it may be necessary to begin Court proceedings.

For further information on this process, read our Guide to Making a Claim.

Can claims be brought in relation to private and NHS care?

Yes. Where the birth or other negligent medical treatment occurred through the NHS, the claim is generally brought against the responsible NHS organisation (such as the Hospital Trust or Primary Care Trust).

Where the treatment was privately funded, the claim is often brought directly against the private hospital, or the private medical practitioner, that provided the treatment. Hospitals and private practitioners are typically insured or indemnified for negligence claims.

Will the case be decided by the Court?

Probably not. The vast majority of medical negligence claims are not decided by the Court. Successful claims are usually resolved through agreement of a settlement either before or during Court proceedings. Occasionally, the Court will decide a case, if it cannot be resolved any other way.

Where the claim is for a child, or for an adult who does not have mental capacity, the Court will be asked to consider and approve the settlement. This is a safeguard required under the Court rules to ensure that the settlement is in the best interests of the injured person.

What is the benefit of bringing a claim for my child?

If medical negligence was the cause of your child’s disabilities, bringing a claim can secure substantial compensation to meet their needs throughout their lifetime. Having the funds to buy-in additional support can be transformative. Local authorities have limited budgets and many specialist therapies, such as neurophysiotherapy can be denied to children by the NHS.

There are a lot of resources available to empower disabled people and allow them to live life fully. However, this often costs more than for non-disabled people. A claim can secure the funding for life enhancing care, specialist equipment, support with education, adapted accommodation and therapies. It can also provide long-term financial security for someone whose ability to work is affected by their disabilities.

What happens to compensation obtained for a person with Erb's Palsy?

If compensation is obtained for a child who is unlikely to have ‘mental capacity’ to manage their financial affairs as an adult, a professional ‘Deputy’ is usually appointed. The Deputy will manage the compensation, on the child’s behalf, and act in their best interests. They will liaise with the family and release funds to ensure that the child’s needs are met in an appropriate way.

See Kingsley Napley’s Court of Protection and Deputyship page for further details about the role of a professional Deputy.

If the child is likely to have mental capacity as an adult, then the Court will usually hold the funds until the child is 18. Prior to that, funds can be released to meet the child’s needs.

We are struggling with the effects of our child’s disabilities. Will it take a long time before the case is concluded?

Medical negligence claims typically involve detailed investigation and expert evidence. They often take a number of years to resolve.

Our approach is to seek an admission of liability (i.e. confirmation that negligence occurred and caused injury) as early as possible in the process.

When liability is established, the Defendant usually has to pay part of the compensation immediately. This allows your child’s needs to begin to be met from the compensation, while the work to quantify the full amount of compensation continues.

Do you offer 'no win, no fee' agreements?

Conditional Fee Agreements (known as ‘no win, no fee’ agreements) are the most common way that the medical negligence claims we undertake are funded. This gives clients the reassurance that they will not (in almost all cases) have to pay any legal costs in the event that they are not successful with a claim. We will explain all possible funding options with prospective clients.

Please see our page on How are claims funded?

How do I access medical records?

Medical records are usually the starting point for our investigation of a claim. With your permission; we request these records directly from the treatment provider(s).

Our clients sometimes wish to obtain copies of their birth notes and their child’s medical records themselves, before deciding whether to begin a claim. Please see our Guide to Accessing Medical Records for further information on how to request records.