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Delaware Mother Opposes Motion to Dismiss Erb’s Palsy Lawsuit

mother cradles newborn's foot

A Delaware mother recently filed a court brief arguing that her medical malpractice lawsuit should continue despite the defendants’ arguments that she waited too long to file the case. On July 10, 2015, the plaintiff mother filed an answering brief in the Delaware Erb’s palsy lawsuit against the doctor and medical practice that delivered her child.

The lawsuit was filed on behalf of both the mother and her son; the defendants filed a motion for partial summary judgment seeking to exclude claims by the mother.

Malpractice lawsuit alleges Erb’s palsy

On January 20, 2014, Monica Broughton filed the medical malpractice complaint in the Superior Court of the State of Delaware, in New Castle County. She sued Dr. Peter J. Wong and his practice, Dedicated to Women Ob-Gyn, P.A., alleging that they caused her child to suffer a birth injury that led to Erb’s palsy.

The court appointed Broughton Next Friend of her son by an order on March 13, 2014; she is bringing claims in the names of both herself and her minor child. The complaint alleged that the defendants were negligent during the April 9, 2008, birth of the child by using excessive traction when he showed signs of shoulder dystocia.

It further alleges that those actions injured his right brachial plexus, resulting in permanent Erb’s palsy. In addition, the plaintiffs allege that the defendants did not provide informed consent.

Statute of limitations in Delaware lawsuit

In the Broughton lawsuit, the doctor and medical practice who delivered the baby argued that his mother should not be permitted to bring a medical malpractice suit because the statute of limitations has expired. Delaware law grants injured parties two years to file a medical negligence suit but allows minor plaintiffs under six years old until their sixth birthday to file a complaint. The Delaware lawsuit was filed three months before the child’s sixth birthday.

According to the opposition brief, the defendants waited too long to raise this argument and have therefore waived their right to raise the statute of limitations as a defense. It further asserts that Monica Broughton is legally allowed to pursue a medical negligence claim on behalf of her child and that she has not alleged any independent claims of negligence.

Medical professionals need to be on lookout for Erb’s palsy

Erb’s palsy is a type of shoulder dystocia injury. Shoulder dystocia occurs when a baby’s shoulder becomes stuck in the birth canal, and only the head is delivered. The tilt of the body in this position places a strain on a bundle of nerves – the brachial plexus – running through the neck. Injuring these nerves can reduce the flow of blood and oxygen to the brain, leading to paralysis or death. In Erb’s palsy, both the upper and lower arm are paralyzed.

Shoulder dystocia can happen in many situations but it is more likely to occur when there are certain risk factors that can prolong labor. For example, shoulder dystocia is 10 times more likely to occur when the baby is very large. Doctors and other medical professionals are trained to look for these risk factors so that they can take preventative or corrective actions like performing a cesarean section rather than risking a trial of labor.

  1. March of Dimes, Pregnancy Complications,

  2. Delaware Code, Chapter 68 Health-Care Medical Negligence Insurance and Litigation,