Malpractice defense: Shoulder Dystocia / Erb’s Palsy Injury

In addition to my consulting work and writing the Health Business Blog, I’m chairman of the board of Advanced Practice Strategies (APS), a medical risk management firm that provides litigation support for malpractice defense and an eLearning curriculum focused on enhancing patient safety.

To learn more contact: Timothy Croke, Director of Demonstrative Evidence Group. or 617-357-0553 ext. 6664.

Here’s the Advanced Practice Strategies case of the month.

Judgment for the Defense
Shoulder Dystocia / Erb’s Palsy Injury

The plaintiff was admitted following spontaneous rupture of membranes for induction of labor.  She received an epidural in the active phase of labor and approximately 90 minutes later was initially thought to have reached the start of the second stage of labor. She began pushing at 5:47 p.m. but at 6:05 p.m. was told to stop because her cervix was not completely dilated— a small anterior lip of the cervix was found still present. Around one hour later, the patient’s cervix became fully dilated, so the patient resumed pushing with contractions.  Two hours later, the defendant physician was summoned to the room for the delivery.  Within 15 minutes of the physician’s arrival, the patient delivered the fetal head, and a shoulder dystocia was encountered.  The patient pushed herself into a sitting position at the top of her bed and closed her legs together.  In response, the defendant physician first asked that the patient be pulled down into the usual delivery position on the bed and then attempted the McRoberts maneuver to help effect delivery.  After this proved unsuccessful, the defendant physician performed an episiotomy, asked for application of suprapubic pressure, and subsequently moved to deliver the posterior shoulder.  Following release of the posterior shoulder, the remainder of the delivery quickly followed.  The child was later diagnosed with a brachial plexus injury (Erb’s palsy).


The plaintiff maintained that the shoulder dystocia, and ultimately the Erb’s palsy, could have been avoided if the defendant physician had noted the length of time the plaintiff pushed and had intervened appropriately.  The plaintiff also believed that the defendant should have recognized, given the extended second stage, that the fetus was likely large and that a cesarean rather than a vaginal delivery was necessary.

The defense disputed the plaintiff’s claims, arguing that  nothing signaled a potential shoulder dystocia or that any complications were likely from a vaginal delivery. The patient’s labor progressed at a normal rate, with no sign of a problem due to the fetus’s size. Furthermore, once the cervix was confirmed to be completely dilated and the patient had resumed pushing without interruption, at 6:59 p.m., the fetus descended normally, giving  no cause for concern until the shoulder dystocia was encountered at 9:44 p.m. Immediately after diagnosis of the shoulder dystocia, appropriate steps were taken to relieve the problem.



Collaborating with the defense experts and attorney, APS created a visual strategy that helped to describe the delivery and to show how the defendant followed proper standards of care, performing appropriate maneuvers to resolve the shoulder dystocia once diagnosed.

The first diagram illustrated an anterior cervical lip and how it compares to a fully dilated cervix.

The next diagram demonstrated the typical series of events leading to a shoulder dystocia, with the anterior shoulder lodged behind the maternal pubic bone.

A third diagram illustrated how the McRoberts maneuver and suprapubic pressure are applied in cases of shoulder dystocia to free the fetus’s anterior shoulder from behind the pubic bone, thus effecting delivery.

A fourth diagram showed delivery of the posterior shoulder.

Several additional visual aids indicated how brachial plexus injury occurs and the nerves affected by Erb’s palsy.

Charts pointing out the increased risks associated with a cesarean delivery as compared to a vaginal delivery helped show the jury why the defendant physician had felt it was safer for the patient and fetus to continue with a vaginal birth.
Chart 1: List of Risks of Cesarean Section
Chart 2: Risks of Cesarean Section per 1000 Women
Chart 3: Risks of C-section Compared to Vaginal Delivery

Another chart showed the number of needless cesarean deliveries required to avoid risk of one instance of a permanent brachial plexus injury  in a fetus weighing less than 4500gms.

Finally, a timeline set out the patient’s labor course, including the timing and duration of pushing.

This series of illustrations helped the defense successfully convey to the jury the following key points:

  • During the plaintiff’s labor, nothing indicated any increased risk of shoulder dystocia.  Both the patient’s cervical dilation and the fetal descent occurred normally.
  • Once the shoulder dystocia was diagnosed, the defendant physician immediately followed appropriate steps to resolve the emergent situation and deliver the infant, with the unfortunate outcome of an Erb’s palsy.


The jury found in favor of the defense. 

“This case involved an infant who suffered a fairly significant shoulder injury at birth.  At trial, the child was 8 years old and presented with fairly significant disability.  There was a large sympathy factor at play during trial as a result. The illustrations that APS developed were instrumental in allowing the defendant physician to explain her medical decision-making in great detail.  They allowed her to stand in front of a jury and ‛teach’ them in a friendly and caring way about each and every decision that she made.  In this way, the focus of the trial was diverted away from sympathy and toward the clinical decision-making in the case.  The visuals were instrumental in obtaining a defense verdict.” 

—Attorney, Bernie Guekguezian, Adler Cohen Harvey Wakeman and Guekguezian LLP, Boston, MA
September 22, 2011

One thought on “Malpractice defense: Shoulder Dystocia / Erb’s Palsy Injury”

  1. My thanks for bringing this news item to my attention. Despite our best efforts, there is no way to predict such an event (well at least for me who’s crystal ball remains a bit cloudy)

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