Forum Magazine
June 2002
Mark D. Wenzel, Esq.

Evaluating Brachial Plexus Birth Injuries

Any plaintiff's lawyer who has done a fair amount of medical malpractice work has no doubt had the opportunity to review, or the dubious fortune to pursue a brachial plexus birth injury case. The purpose of this article is to provide the practitioner with some guidance in analyzing, evaluating and if he/she be so brave--handling such cases.

WHAT IS BRACHIAL PLEXUS BIRTH INJURY?

Sometimes during the course of a vaginal birth, an infant's anterior, or top shoulder will become caught or hung up on the mother's pelvic rim. When this condition occurs, it is known as shoulder dystocia. In attempting to "free up" the shoulder from the pelvis, the doctor or frequently nowadays, the midwife, may pull the infant's head putting lateral traction (force) on the infant's neck.

When force is applied to the infant's neck by pulling on the head, the nerve bundle which proceeds out of the spinal cord and down the arm may be stretched, bruised or in some cases torn (avulsed). The nerve bundle is known as the brachial plexus, and when this "plexus" is stretched, bruised or torn, the result is impairment of the infant's neurological and muscle function of the upper extremity innervated by the brachial plexus. The degree of injury to the infant's arm will depend upon the degree of stretching or tearing of the brachial plexus. In the case of a mere stretch of the brachial plexus, the infant typically will recover full or near full use of the arm within approximately one year. However, in the case of more severe bruising or treating of the brachial plexus, the injuries are likely to be permanent, and may have rather devastating lifelong effects. A child with a permanent brachial plexus injury, or Erb's Palsy will be unable to participate in sports requiring two hands, play musical instruments requiring two hands, or perform any other activity that requires capable use of both upper extremities.

Typically, when parents realize their child's arm is going to be permanently impaired they will seek out an attorney to represent them in what they believe is a clear case of medical negligence. Unfortunately, more often than not, these cases are successfully defended by doctors and their legions of "Oh So Competent Defense Counsel". However, occasionally, there is an Erb's Palsy / Brachial Injury case worth taking. Some of the things to look for and consider are the following:

CAREFULLY REVIEW THE LABOR AND DELIVERY RECORDS

Of course, the first and most logical place to start in evaluating the case is the labor and delivery room records. Yet, scarcely will the records reveal anything obviously incriminating, such as a comment like:

"as the baby's head was crowning, shoulder dystocia was encountered; this was resolved by placing a moderate amount of traction on the head".

Although something like what has been quoted above is typically what takes place (and typically how a physician resolves a case of shoulder dystocia), since it is known that brachial plexus injuries occur as a result of direct traction on the neck by pulling on the head, rarely will a doctor ever admit that activity.

What is more typically seen in a brachial plexus birth injury is an entry something like this:

"As the baby's head was delivered, shoulder dystocia was encountered. This was resolved by … (one or a combination of the following) MacRobert's Maneuver, Wood's Screw Maneuver, Application of supra-pubic pressure by nurses and/or reaching into the vagina and delivering the posterior arms) which freed up the anterior shoulder".

As stated, typically the birth record will include a claim by the doctor that one or more of the appropriate techniques listed above was utilized at the time of birth. The problem with this type of record is that it does not explain the injury. None of the correct methods referred to above, if performed properly, will cause any injury to the brachial plexus, and this is so because these maneuvers simply do not put sufficient stress or force on the involved nerve bundle to result in serious injury.

Therefore, if the doctor's record makes no mention of applying traction to the head/neck of the fetus and it mentions one of the approved methods utilized to relieve the dystocia/hang up, there is something critical missing from the record (i.e. the mechanism of the child's injury).

In such cases, look for the following items in the medical record:

1. Was an episiotomy done?

2. What was the time that elapsed from the time that the head was delivered until the time the delivery was completed? - This is the critical time period;

3. What was the weight of the baby?

THE EPISIOTOMY

A retired profession of medicine at the University of Southern California School of Medicine, and noted authority on brachial plexus injury cases once told me that an episiotomy should always, I repeat always be done in a case involving shoulder dystocia. By performing the episiotomy, this may, in some cases reduce the dystocia and allow for an easy delivery of the child. More often, the episiotomy itself does not reduce the dystocia, but it does give the doctor more room to reach into the birth canal and perform either the Wood's Screw Maneuver or deliver the posterior arm of the child, both very effective means of safely delivering a child with shoulder dystocia.

Thus, look at the record to see if an episiotomy was performed. If it was not performed, not only does this suggest that the doctor/midwife was somewhat remiss, but this also may be related to the next item to look for in the record.

HOW MUCH TIME ELAPSED BETWEEN DELIVERY OF THE HEAD AND COMPLETION OF THE DELIVERY OF THE BABY?

Of time between delivery of the head and the delivery of the child, the greater the likelihood of medical negligence in injuring the brachial plexus.

In case of shoulder dystocia, once the head descends below the cervix and into the birth canal, it can be seen by the delivering physician or midwife. In cases of shoulder dystocia, the head will typically retract a little bit as the force on the pelvic rim against the shoulder works against the contraction which is tying to "push the baby out". This retraction is known as a "turtle sign" that signifies to the doctor or midwife that a condition of shoulder dystocia exists. However, a short interval of time between recognition of the shoulder dystocia and complete delivery of the child, I.e. one to two minutes or less, is circumstantial evidence that the baby's head was pulled on to reduce or resolve the dystocia and deliver the baby. In other words, a quick delivery in the face of dystocia can be some evidence of negligence.

If the doctor or midwife is exercising appropriate medical care, it will usually take several minutes, typically two and a half to five minutes to deliver the child with shoulder dystocia. During this two and half to five minute period of time, the doctor will perform an episiotomy to provide more room; instruct those present in the delivery room to assist with the MacRobert's Maneuver (I.e. pushing the mother's legs back up to chest which tilts pelvis and baby, and sometimes frees up the stuck shoulder); have the nurse or nurses apply supra pubic pressure while the doctor reaches in to perform either the Wood's Screw Maneuver or delivery of the posterior arm.

Completing the episiotomy and successfully performing these maneuvers typically takes a few minutes, but the result is a successfully delivered child without brachial plexus injury.

The delivery records will sometimes refer to "fundal pressure" being applied by the nurse. This is not a good idea and may be incriminating depending on other circumstances. Fundal pressure is pressure applied to the mother's belly much higher on the abdomen, i.e. just below the rib cage. Such pressure is not effective in freeing up shoulder dystocia, and in fact can aggravate the condition by applying additional downward force on the child into the pelvis. Doctors and/or nurses in their deposition sometimes try to claim that what they meant by fundal pressure is supra-pubic pressure, but they are not the same, they are not interchangeable, and don't let them get away with claiming that the terms are used interchangeably--they are not!

THE WEIGHT OF THE BABY

The incidence of shoulder dystocia and hence brachial plexus injuries goes up significantly with the weight of the baby. Brachial plexus injuries more typically occur in babies weighing in excess of 9 pounds at the time of birth, and the incidence of shoulder dystocia correlates very highly with infants weighing in excess of 9.5 pounds, or roughly greater than 4500 grams. Since the incidence of shoulder dystocia correlates with high birth weight, not only is the infant's weight at the time of birth very important, but also, it becomes very important to check the prenatal records for dianostic studies estimating birth weight. Check the records for ultrasounds performed close to the time of birth. Ultrasounds and the mother's fundal height measurements can be used to predict the weight of the baby at the time of birth. If the baby's predicted weight, based upon such factors as late term ultrasound, fundal height measurement and/or the weight of previous babies delivered by the mother, is greater than 9 pounds, the doctor or midwife should have an increased awareness about the likelihood of shoulder dystocia and should either be prepared to deal with the situation properly, or consider recommending a ceasarean section.

Rarely will the doctor be found to be below the standard of care in a brachial plexus injury case for not performing a cesarean section unless the predicted birth weight of the baby is very high and the mother's pelvic opening, as measured by pelvimetry, is very small. However, if you have a nine plus pound baby with a brachial plexus injury, and no discussion or consideration of a c-section, no episiotomy and a short amount of time between delivery of the head and birth, you have a lot of circumstantial evidence suggesting that the doctor's actions in delivering this child were below the standard of care.

THE CURRENT JUNK SCIENCE AND HOW TO HANDLE IT

Plaintiff's attorneys are frequently being accused of using junk science to bolster their claim. Defendants frequently argue that the expert opinions proffered by plaintiffs in many areas of the law are not scientific and should be disregarded by the courts. Well, the defense of Erb's Palsy cases has, in recent years, begun to rely upon some junk science of its own.

In approximately 1996, several doctors published an article arguing that in many cases, brachial plexus injuries were not birth injuries at all, but were in fact caused by some event or series of events that occurred ":in utero" and thus the occurrence of such injuries could not be ascribed to any conduct of the delivering physician. OBGYNs, health care insurers, and malpractice defense attorneys hailed the article as an important scientific breakthrough. The problem however is that the article and the conclusion upon which much of the current defense of these cases rests is anything but scientific.

What the authors of the article in question did was perform a retrospective review of medical records of infants born with brachial plexus injuries. The authors found that in the vast majority of the records they studied, there was no written evidence that anything that occurred during the birth process caused the injuries. As stated at the outset of this article, rarely will the medical records include a self incriminating comment by the delivering physician. Yet, the authors of the medical literature have taken this absence of an explanation for the cause of the injuries in the medical records and used it as a basis for their conclusion that the injuries must have occurred "in utero".

In other words, the argument goes, "since there was nothing in the records that indicates the cause of the injuries, the injuries must have occurred before the delivery process itself." This is not at all scientific, and again it ignores both the fact that self-incriminating comments rarely appear in medical records, and it further ignores the circumstantial evidence of negligence that may be derived from the records. However, the article in question has appeared in "Peer Review" publications and thus, defense experts often refer to it to support their opinion that "the treating doctor did not violate the standard of care, and in fact there is medical evidence to suggest that these injuries are not even caused during birth."

Thus far, it appears that the best way to attack the argument is to do the following:

1. Build as good of a case of circumstantial evidence from the records as possible;

2. Attempt to undermine the article's validity by pointing out its unscientific approach and basis;

3. Obtain an expert in the field of pediatric neurology or biomechanics with some experience in the forces involved at birth.

With regard to this latter point, competent pediatric neurologists will tell you that the brachial plexus is not going to be injured by anything that happens in utero prior to the actual birth process. Likewise, a biomechanical expert who has some experience in the field of the forces involved in birth and delivery can provide some support for this position.

CONCLUSION

Brachial Plexus/Erb's Palsy cases frequently involve very significant injuries and the most sympathetic of plaintiffs, i.e. a defenseless baby. Looks can be deceiving however, and the prudent plaintiff's practitioner would be wise not to automatically jump at these cases, but to closely review the records and promptly seek out expert support before deciding to go forward in such a case.

Although labor and delivery/birth records are not always that complete, usually the time when certain landmark events occurred are properly charted. Typically therefore, there will be an entry in the chart for the time when the head is delivered, and there will always be a time when the delivery is complete. Contrary to what your intuition might tell you, the shorter the period