Erb’s Palsy Lawsuit Alleges Negligence Caused Neurological Damage, Disability

An Erb’s Palsy lawsuit filed by parents of a baby born in 2013 contends that the minor plaintiff will suffer lifelong neurological damage and disability due to the negligence of doctors and a midwife attending his birth in a Florida health facility.

In the complaint, filed on July 10, 2015 in the US District Court, Middle District of Florida, Fort Myers Division, attorneys for the plaintiffs allege that Jeffrey L. Garner, MD (the mother’s main obstetrician), Tanya L. Gallagher, CNM (the midwife who attended the birth), and Juan Pablo Richiusa, MD, the physician called to assist during the delivery at Family Health Centers of Southwest Florida, deviated from the standard of care in their handling of the child’s birth.

According to the birth injury lawsuit, the child will require surgery to treat severely torn brachial plexus nerves, resulting in Erb’s Palsy, a type of brachial plexus injury entailing paralysis of the shoulder, arm, hand, and fingers. Surgery is expected to mitigate, though not completely cure, the paralysis. There are also indications, according to the complaint, that the child will suffer developmental delays due to significant brain injury resulting from lack of oxygen during the delivery.

Lawsuit alleges baby suffered oxygen deprivation

The complaint states that the mother of the minor child was due to deliver her second baby (this was her third pregnancy) on December 10, 2013. However, when Dr. Garner performed a non-stress test at 38 weeks and 1 day of gestation (November 27) and found the fetus “non-reactive,” he admitted the mother for labor induction.

Midwife Gallagher attended the birth. She delivered the baby’s head, but was unable to deliver the shoulders; the baby was born a full ten minutes later. She called Dr. Richiusa to assist in the delivery. The baby had low Apgar scores at the time of birth and cord blood results indicated severe metabolic acidosis due to oxygen deprivation. He had two seizures on the second day of his life and spent 26 days in Golisano Children’s Hospital following his birth. He weighed 9 lbs, 4 oz, at the time of delivery.

The lawsuit filed by the parents on behalf of themselves and their child states that the doctors and midwives deviated from the standard of care expected in such cases in a number of ways. First, the delivery was anticipated to be “high-risk” based on the fact that the mother was diabetic and that she had achieved significant weight gain during pregnancy relative to her height, raising the risk that the baby would be a larger than average newborn whose delivery could be complex. According to the complaint Dr. Garner should not have let a midwife handle such a delivery. Moreover, the suit also notes that Gallagher appears to have applied excessive force to the baby’s head in an attempt to deliver him, resulting in brachial plexus injury.

Plaintiffs demand $14 million

In the lawsuit filed on behalf of the family, damages of $10 million are demanded for the child, while the parents have demanded $2 million each. The basis of the size of damages is the extensive medical bills, therapeutic treatments, losses, and suffering that both parents and child may anticipate during the duration of the child’s life.

The complaint notes that the child with such levels of brain damage and disability may expect extensive physical, mental, and emotional pain and suffering, and will experience a diminished ability to enjoy life. Significant funds will be needed for various types of rehabilitation, occupational therapy, and vocational therapy. Upon arriving at adulthood, the child will face substantial challenges in earning a living and will continue to require extensive medical care.

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