Defending the Brachial Plexus Injury†
Eldon L. Boisseau
In the world of medical malpractice defense, the brachial plexus injury is a defensible case. All available statistics indicate that even with today’s advanced technology and state of the art medicine, it is not reasonable to expect a physician to know, prior to the actual birth, a shoulder dystocia will occur, much less a brachial plexus injury.
If one does not know, or even reasonably anticipate that it will occur, how can that physician reasonably prevent it from happening? Nevertheless, obstetricians and hospitals are sued for this injury with some frequency, and there are significant verdicts against those defendants in this matter. So, how does one best approach this type of case, and give the client the best opportunity to win?
In labor and delivery litigation we see numerous injuries to newborns. Many times these injuries cause cerebral palsy or mental deprivation, both of which are often illusory in nature. The shoulder dystocia, however, is clearly identifiable, with a brachial plexus injury often diagnosed later.
History and Anatomy
Brachial plexus injuries were first recognized, diagnosed and studied by William Erb in 1877. These injuries were studied and the “Erb’s point” was developed and defined as a sensory nerve point, C-5 through C-6. In Erb’s studies, he determined that these injuries resulted from traction to the spinal nerves in the cervical area. The Erb injury was the most common, and injury to the nerves (C-7 through T-1) less common. Today we have developed guidelines in defining the range of these injuries to an infant. Although the Erb’s Palsy is commonly referred to as a brachial plexus injury involving C-5 through C-6, the brachial plexus area, as a whole, is now considered to be from C-5 through T-1. If the injury is in the T-1 area one has a lower arm palsy, and if it involves C-5 through T-1, there is paralysis of the whole arm. Note these other documented observations:
1. Typically the upper arm palsy (Erb’s palsy) is C-5 through C-6, some contend through C-7.
2. The lower arm palsy (Klumpke) is C-8 through T-1.
3. All palsy or paralysis of the whole arm is C-5 through T-1.
4. If severe enough, the diaphragmatic nerve may be injured and may cause lack of function and breathing difficulties.
The injury may be located anywhere from the origin of the nerve root to the terminal nerve branch, and is believed to be caused by traumatic stretching. This traumatic stretching can be simple stretching of the nerve roots, or total nerve avulsion. The impact to avulsion is a lack of motor function of the extremity, as well as sensory losses. The motor deficits are normally unilateral and are found to be bilateral in only about 10% of the shoulder dystocia cases.
The injury of the nerve roots usually has the following involvements:
1. Weakness of shoulder abduction of the deltoid muscle, C-5.
2. External rotations of the shoulder, C-5.
3. Elbow flexion, C-5 to C-6.
4. Absence of biceps reflex, C-5, C-6.
5. Wrist and finger enervation problems, C-6, C-7.
It should be noted that most of the Erb’s palsies do have finger flexion, with a grip of varying degrees. The Erb’s palsies, compared to total upper and lower root involvement, is a paralysis of the intrinsic muscles of the hand, as well as the other muscles mentioned above.
As indicated earlier there is sometimes an isolated problem with the brachial plexus nerve root injury, causing diaphragmatic paralysis. This incident occurs in about 5% of the cases with brachial plexus injury where the diaphragm has been paralyzed. Often times there is a partial paralysis and respiratory effort is compromised, but not completely seized. Usually this occurs within the first few hours after birth, and the infant may experience respiratory difficulty, often associated with tachypnea, but with blood gases suggestive of hypoventilation and acidosis. Oxygen therapy over the following few days will probably stabilize the patient or it may require varying degrees of ventilatory support. Radiographic exams of the chest are vital to accurate diagnosis. Without them the diaphragmatic paralysis is often missed. Often times the infant may go five or six weeks before someone is able to make the diagnosis because of other ultrasonic studies. Most of the lesions are right side and only 10% are bilateral.
Once again, the prognosis is dependent upon the severity of the injury, but the majority of infants, after six to twelve months, have recovered completely. Numerous different respiratory therapies, on a temporary basis, are appropriate, and after some careful watching, it is sometimes necessary to have surgical intervention.
The Fractured Clavicle:
Another common injury alleged to have resulted from a shoulder dystocia is the fractured clavicle. In fact, one of the procedures for effectuating the delivery with a shoulder dystocia may be the intentional fracturing of the clavicle to loosen the posturing of the fetus. Without a fractured clavicle, however, significant neurologic injuries have and can be seen as a result of shoulder dystocia. Also, a fractured clavicle may occur without any impending nerve injuries or, in fact, even without a reported or diagnosed shoulder dystocia.
Prolonged Labor and Other Issues:
Other obstetrical issues often creep into the shoulder dystocia/brachial plexus injury lawsuits. These include prolonged labor and the use of fundal pressure or suprapubic pressure. Suprapubic pressure is absolutely required and is a recognized application, while fundal pressure is considered to be inappropriate, particularly while the shoulder is still engaged. Once the shoulder has been dislodged, it may become appropriate to effectuate delivery with fundal pressure.
Most of the injuries of a brachial plexus nature are diagnosed following a shoulder dystocia presentation in the labor and delivery suite, usually hours or days later. They can sometimes be diagnosed as a result of a CT scan or an MRI showing the avulsions of the nerve roots, if that is in fact what has occurred. This, of course, always depends upon the severity, and the severity may require further surgical intervention, or exploration. There are brachial plexus injuries also reported without shoulder dystocia or a traumatic delivery.
The severity of the injury, whether stretching or a complete avulsion, is going to impact the final prognosis. Ninety percent of brachial plexus injuries resolve within four months, the remainder will be permanent in nature.
As with any injury, treatment has evolved over time. Normally the treatment is an immobilization of the limb with some passive range of motion. Early in medicine it was determined that splinting of the arm would be important. If within three months there has not been a significant recovery, then micro-surgery could be considered, and has, in fact, been proven to be very effective, particularly when completed by about age six.
These injuries require intricate plastic surgery to repair the avulsion or the nerve neuroma produced from the injury. Currently, there are approximately four brachial plexus clinics in the world that specialize in these newborn injuries. Surgical intervention will ascertain whether, as a result of the injury, there is a neuroma, or an avulsion of the nerve. Quite a number of surgical improvements have been made in these approaches to repair, allowing significant restoration of otherwise permanently injured nerve roots.
Cause of Brachial Plexus Injury
When is this injury observed and what is its cause? More often than not the brachial plexus injury is a result of the shoulder dystocia. There are some minor exceptions. There is some medical literature that suggests the brachial plexus injury is a result of the normal forces of labor and delivery, without the presence of any shoulder dystocia. This may certainly be true in a minimal number of cases, but usually the brachial plexus injury is part of the picture following a shoulder dystocia.
Most commonly associated with a brachial plexus injury is a shoulder dystocia after the child’s head has been delivered. Statistical information covering this situation shows that 90%, more or less, of these children continue life without any difficulties whatsoever. The remainder will have continued impairment of function. The proposition has already been advanced, of course, that this condition is not diagnosable, but the obstetrical community has recognized some risk factors for shoulder dystocia. These are:
2. Prolonged labor
3. Gestational Diabetes
4. Breech delivery
5. Cephalopelvic disproportion.
The Risk Factors
It needs to be realized there are risks, not factors, which plaintiffs will claim diagnose the condition or allow reasonable prediction it will occur. There is a divergence of opinion within the literature and within the medical community as to what constitutes macrosomia in terms of fetal size. Some literature indicates 4,000 grams or more is macrosomic, while American College of Gynecology Bulletins, along with other literature including textbooks, indicate 4,500 grams or more. The prevailing problem is that regardless of the weight of the child, the actual weight is never known before delivery, and there is no accurate way in which to distinguish between a 3,500, 4,000, or 4,500 gram infant prior to birth. Ultrasound, which is often used, is wholly inadequate and inaccurate for this determination. One should be aware, however, that in plaintiff’s cases one will hear a great deal about ultrasounds. Either a) they should have been done and weren’t, or b) they were done and indicate a macrosomic infant; therefore someone should have done something about it.
While macrosomia, whether 4,000 or 4,500 grams, is a risk factor, it still does not make it diagnosable. The ability to diagnose the exact weight of an unborn child is essentially non-existent. One can diagnose normal growth. Large bone size can be diagnosed. One can determine the growth pattern. However, to ascertain whether a child is 3,700 grams or 4,500 grams is not a reasonable diagnostic opportunity. Ultrasounds, late in the pregnancy, are clearly inaccurate in determining weight.
Further, the statistics indicate that shoulder dystocias occur in about 0.15% of the babies weighing more than 2,500 grams; 1.7% of babies more than 4,000 grams; 4.6% of babies with attempted mid-forceps deliveries or prolonged second stages of labor; and approximately 18% to 23% of babies weighing more than 4,500 grams. Further, it should be noted that more than 50% of the shoulder dystocia cases occur in babies that weigh 4,000 grams or less. Even if one could actually diagnose a baby as macrosomic, there would still need to be justification for a cesarean section. Medical literature relates studies that have done much to evaluate this particular concern. Frankly, the literature supports the argument that if a cesarean section were to be performed for every baby considered to be macrosomic, on the premise of preventing a brachial plexus injury, thousands of unnecessary cesarean sections would be performed to prevent one brachial plexus injury. More shoulder dystocias might be prevented, but it must be remembered that not every shoulder dystocia results in a brachial plexus injury. The ratio of cesarean sections to prevent shoulder dystocia is estimated to be 150/1. Further, not only do cesarean sections put the mothers and babies at increased risk for injury, they are economically unfeasible as well.
There is some line of thought that a cesarean section is a solution, but that has never proven to be correct, and that line of thought normally is offered in the opening statements and closing arguments of the plaintiffs’ attorneys.
Some other risk factors for shoulder dystocia include maternal obesity, maternal gestational diabetes, prolonged labor, and even breech deliveries.
It should be remembered that risk factors are just that -- risk factors. They are not diagnostic factors; they are not factors that dictate a cesarean section. In the worse case scenario, the risk factors might heighten the anticipation of having a shoulder dystocia problem so that preparations can be made to deal with it in the most efficient and effective way.
It is also significant to note that these types of cases are usually multi-factorial. In other words, you may have a macrosomic baby or gestational diabetes, and you should suspect a macrosomic baby; or you may have a macrosomic baby in a prolonged labor; or you may have a prolonged labor with a mid-level (+2 station) vacuum extract attempt, or even forceps being used.
In the multi-factorial circumstance, the decision as to whether to perform a cesarean section is not simply if the child is large, and not simply if there might be a shoulder dystocia or some potential resultant brachial plexus injury. Rather, the decision turns on whether there is some other significant factors affecting the decision-making process to have a vaginal delivery and requires cesarean section intervention.
Because the obstetrician’s case needs significant statistical information to justify the decisions not to perform a cesarean section, it is important to note the previous facts with regard to cesarean sections, and following cesarean section risks that may be passed along in discussion and testimony:
1. The statistical information concerning cesarean sections is that 25% of the cesarean sections result in some type of injury to the mother or child.
2. The maternal risks from cesarean section, confirmed by medical literature, are as follows:
1. The risk of death from a cesarean section is 1 per 2,500 births.
2. The risk of death from a vaginal birth is 1 per 10,000 births.
D. Wound infection
H. Urinary tract infection
J. Pulmonary embolism
L. Increased blood loss
M. Decreased bowel function
N. Respiratory complications
O. Longer stays and recovery time
P. Adverse reaction to anesthesia
Q. Risk of Additional surgeries
3. The risks to the fetus or newborn as a result of cesarean section are as follows:
A. Premature birth
B. Breathing difficulties
C. Lower Apgar scores
D. Fetal injuries
Emphasis has to be placed on the fact that a cesarean section is not a risk-free, minor intervention that allows everyone to go home with no possibility of injury. That simply is not the truth.
Dealing With the Shoulder Dystocia in the Labor and Delivery Suite
A shoulder dystocia is considered a medical emergency. The factual situation occurs when the head of the fetus is delivered with the umbilical cord still attached to the placenta and to the fetus, but positioned in the birth canal in such a way that it could be compressed with contractions or with tension. This causes intermittent oxygen deprivation to the fetus.
There are recognized obstetric procedures, such as the McRoberts procedure, the Woods maneuver, an enlarged episiotomy, and even the Zavanelli procedure, as well as other means of delivery. These also require assistance, usually of additional personnel, to effect better positioning of the mother in an attempt to deliver the fetus. However, most babies are successfully delivered with a shoulder dystocia. While there may be a sense of panic or haste, this can normally be done in no more, and usually less, than a six minute time frame.
How Do We Defend the Brachial Plexus Injury?
Of course, in these matters there is an injury, so the issue of causation is not a readily available method of defense. There will be testimony that the traction, the shoulder dystocia, or a combination thereof produced the brachial plexus injury. There are reported incidents of brachial plexus injuries without any shoulder dystocia. While, as a practical matter, you may not be able to prove it. The logical approach or acceptance by a jury will be that it is caused as a result of shoulder dystocia.
The key point has to be that it is not a diagnosable event and, therefore, since it could not be diagnosed, there was no way to prevent it. The standard of care then becomes the primary defense.
1. All of the key facts and information about the history of the labor and delivery have to be carefully scrutinized to make sure that some other reason for a cesarean section did not exist.
2. The character of the labor and the fetal heart rate patterns also should be carefully scrutinized looking for other reasons for intervention besides shoulder dystocia.
Assuming that the foregoing two areas are clear and defensible, it then becomes a process of educating the jury of the statistical analysis by reliable literature that one cannot pre-diagnose this issue. The bottom line is that while there may be an increased risk, it is not a diagnosable problem. Likewise, the irrational approach of doing a cesarean section every time one might have some particular set of risk factors would be enormously costly as well as excessively risky for both mother and fetus. Finally, of course, it is important to quote statistics that show clearly that the brachial plexus injury carries a much smaller risk factor than the alleged comparatively safe cesarean section.
Most of these facts have to be explained to the jury by the appropriate expert witness, as well as the obstetrician who has engaged in the normal operating and decision making process.
At trial the correct expert and the well-prepared defendant are critical to success. The lack of a causation defense, as well as the presentation of carefully gathered statistics and published studies on this topic, tend to show that cesarean sections are not the answer. Separation of risk factors from decision making is also important.
Another topic to anticipate involves questions as to the amount of traction used in the delivery procedure. Invariably, there will be testimony or argument that excessive traction was used. As a practical matter, this has not been proven to be a difficult problem to address, but it does have a certain amount of jury appeal. It is advisable to introduce the subject early on by explaining that a number of procedures must be considered and used in a medical emergency. Among those, significant traction may be necessary in order to effect the delivery. Such an emergency often requires split-second decisions regarding which efforts to employ to extradite the fetus from this particular position. Of course, there is no justification for yanking, jerking or applying excessive traction, but the traction procedure may certainly be rational in order to effectuate a quick and safe delivery.
It is important to keep a focus on the underlying case and the issue of whether one can diagnose whether there will be a shoulder dystocia. You must be able to convince the jury that the medical literature clearly concludes that one cannot make the diagnosis and cannot do a cesarean section every time a risk of shoulder dystocia exists. Also, that even if it appears that there might be a shoulder dystocia, that conclusion will probably be wrong and everything will be fine. As a note of caution, there are a number of physicians, due to the legal climate, that will do a cesarean section on the premise there is a risk of shoulder dystocia because of possible macrosomia, gestational diabetes, or even a previous shoulder dystocia. There is ample literature and expert testimony to support the trial of labor for a vaginal delivery. The plaintiffs do not get to determine “bad outcome, therefore negligence by the physician.”
1. ACOG (American College of Obstetricians and Gynecologists) Practice Bulletin No. 22, Fetal Macrosomia at 1-11 (Nov. 2000).
2. ACOG Practice Patterns No. 7, Shoulder Dystocia, at 1-7 (Oct. 1997).
3. Barbara B. Bennett, Shoulder Dystocia: An Obstetric Emergency, 26 Obstetrics &
Gynecology Clinics of N. Am. 445-58 (No. 3 Sept. 1999).
4. Frank A. Chervenak & Steven G. Gabbe, Obstetric Ultrasound: Assessment of Fetal Growth and Anatomy, Obstetrics: Normal and Problem Pregnancies at 251-96 (4th ed. Steven G. Gabbe, Jennifer R. Niebyl & Joe L. Simpson eds. 2002).
5. F. Gary Cunningham et al., Dystocia: Abnormal Presentation, Position, and Development of the Fetus, Williams Obstetrics at 451-68 (21st ed. 2001).
6. F. Gary Cunningham et al., Diseases and Injuries of the Fetus and Newborn, Williams Obstetrics at 1039-92 (21st ed. 2001).
7. F. Gary Cunningham et al., Cesarean Section and Postpartum Hysterectomy, Williams Obstetrics 537-64 (21st ed. 2001).
8. Richard Depp, Cesarean Delivery, Obstetrics: Normal and Problem Pregnancies 539-606 (4th ed. 2002, Steven G. Gabbe, Jennifer R. Niebyl, & Joe L. Simpson eds.).
9. Robert B. Gherman et al., Brachial Plexus Palsy: An In Utero Injury?, 180 Am. J. of Obstetrics & Gynecology 1303-07 (No. 5, May 1999).
10. Bernard Gonik et al., Mathematic Modeling of Forces Associated With Shoulder Dystocia: A Comparison of Endogenous and Exogenous Sources, 182 Am. J. of Obstetrics & Gynecology 514-16 (No. 3 Mar. 2000).
11. Ron Gonen et al., Effects of a Policy of Elective Cesarean Delivery in Cases of Suspected Fetal Macrosomia on the Incidence of Brachial Plexus Injury and the Rate of Cesarean Delivery, 183 Am. J. of Obstetrics & Gynecology 1296-1380 (No.5 Nov. 2000).
12. Susan M. Lanni & John W. Seeds, Malpresentations, Obstetrics: Normal and Problem Pregnancies 473-502 (4th ed. 2000 Steven G. Gabbe, Jennifer R. Niebyl & Joe L. Simpson eds.).
13. John P. Laurent, Neurosurgical Intervention for Birth-Related Brachial Plexus Injuries, 7 Neurosurgery Q. 69-75 (No.1 1997).
14. John P. Laurent, Birth-Related Upper Brachial Plexus Injuries in Infants: Operative and Nonoperative Approaches, 9 J. of Child Neurology 111-18 (No.2 Apr. 1994).
15. Henry H. Mangurten, Injuries to the Neck and Shoulder Girdle, Neonatal-Perinatal Medicine at 460-87 (7th ed. 2000 Avroy A. Fanaroff, & Richard J. Martin, eds.).
16. Dwight J. Rouse & John Owen, Prophylactic Cesarean Delivery for Fetal Macrosomia Diagnosed by Means of Ultrasonography-A Faustian Bargain?, 181 Am. J. of Obstetrics & Gynecology 332-38 (No.2 Aug. 1999).
17. James R. Scott, Cesarean Delivery, Danforth's Obstetrics & Gynecology 457-70 (8th ed. 1999).
18. Joseph J. Volpe, Injuries of Extracranial, Cranial, Intracranial, Spinal Cord and Peripheral Nervous System, Neurology of the Newborn 813-38 (4th ed. 2001).
19. Richard K. Wagner et al., Shoulder Dystocia, 26 Obstetrics & Gynecology Clinics of N. Am. 371-83 (No.2 June 1999).
† Submitted by the author on behalf of the FDCC Medical Malpractice Section.
 Henry H. Mangurten, Injuries to the Neck and Shoulder Girdle, Neonatal-Perinatal Medicine 460-87 (7th ed. Avroy A. Fanaroff & Richard J. Martin, eds. 2002).
 Note the finger grip usually still functions in these situations.
 Joseph J. Volpe, Injury of Extracranial, Cranial, Intracranial, Spinal Cord and Peripheral Nervous System, Neurology of the Newborn 813-38 (4th ed. 2001).
 F. Gary Cunningham et al., Dystocia: Abnormal Presentation, Position, and Development of the Fetus, Williams Obstetrics 451-68 (21st ed. 2001).
 Id., see also Mangurten, supra note 1.
 ACOG (American College of Obstetricians and Gynecologists) Practice Patterns, Shoulder Dystocia, at 1-7 (No. 7 Oct. 1997); Barbara B. Bennett, Shoulder Dystocia: An Obstetric Emergency, 26 Obstetrics & Gynecology Clinics of N. Am. 445-58 (No. 3 Sept. 1999).
 ACOG Practice Patterns No. 7, supra note 10; John P. Laurent, Neurosurgical Intervention for Birth-related Brachial Plexus Injuries, 7 Neurosurgery Q. 69-75 (No. 1 1997); John P. Laurent, Birth-Related Upper Brachial Plexus Injuries in Infants: Operative and Nonoperative Approaches, 9 J. Child Neurology 111-18 (No.2 Apr. 1994).
 Laurent, Neurosurgical Intervention, supra note 11.
 See notes 1 and 11 supra.
 Robert B. Gherman et al., Brachial Plexus Palsy: An In Utero Injury, 180 Am. J. Obstetrics & Gynecology 1303-07 (No. 5, May 1999); Susan M. Lanni & John W. Seeds, Malpresentations, Obstetrics: Normal and Problem Pregnancies 473-502 (4th ed. Steven G. Gabbe, Jennifer R. Niebyl & Joe L. Simpson eds. 2002).
 ACOG Practice Patterns, note 10 supra; Laurent, note 11 supra.
 ACOG Practice Patterns, note 10 supra; Bennett, note 10 supra; Cunningham, note 8 supra; Lanni & Seeds, note 14 supra.
 ACOG Practice Bulletin, Fetal Macrosomia at 1-11 (No. 22 Nov. 2000); Frank A. Chervenak & Steven G. Gabbe, Obstetric Ultrasound: Assessment of Fetal Growth and Anatomy, Obstetrics: Normal and Problem Pregnancies 251-96 (4th ed. Steven G. Gabbe, Jennifer R. Niebyl & Joe L. Simpson eds. 2002).
 AGOC Practice Patterns, note 10 supra; Chervenak & Gabbe, note 17 supra.
 Dwight J. Rouse & John Owen, Prophylactic Cesarean Delivery for Fetal Macrosomia Diagnosed by Means of Ultrasonography -- A Faustian Bargain?, 181 Am. J. Obstetrics & Gynecology 332-38 (No. 2 Aug. 1999); Richard K. Wagner et al., Shoulder Dystocia, 26 Obstetrics & Gynecology Clinics of N. Am. 371-83 (No. 2 June 1999).
 Bennett, note 10 supra.
 ACOG Practice Patterns, note 10 supra; Bennett, note 10 supra; Cunningham, note 8 supra; Lanni, note 14 supra.
 ACOG Practice Patterns, note 10 supra.
 Ron Gonen et al., Effects of a Policy of Elective Cesarean Delivery in Cases of Suspected Fetal Macrosomia on the Incidence of Brachial Plexus Injury and the Rate of Cesarean Delivery, 183 Am. J. Obstetrics & Gynecology 1296-1380 (No.5 Nov. 2000); Wagner, note 19 supra.
 ACOG Practice Patterns, note 10 supra.
 Bennett, note 10 supra.
 James R. Scott, Cesarean Delivery, Danforth's Obstetrics & Gynecology 457-70 (8th ed. 1999).
 See, www.childbirth.org/section/risks.html.
 F. Gary Cunningham et al., Cesarean Section and Postpartum Hysterectomy, Williams Obstetrics 537-64 (21st ed. 2001); Richard Depp, Cesarean Delivery, Obstetrics: Normal and Problem Pregnancies 539-606 (4th ed. 2002, Steven G. Gabbe, Jennifer R. Niebyl, & Joe L. Simpson eds.).
 See, www.childbirth.org/section/risks.html.
 Cunningham, note 8 supra.
Eldon L. Boisseau is of counsel to thew Wichita, Kansas firm of Klenda, Mitchell, Austerman & Zuercher, L.L.C. He has acted as lead counsel in hundreds of trials involving defense of personal injury, products liability, medical and professional liability, property damage, commercial litigation, arson, environmental pollution, civil rights. Mr. Boisseau routinely counsels doctors, hospitals, nurses, and representatives of major insurance companies on professional liability matters. He is a highly regarded litigator, and his successes in the courtroom confirm his “result-oriented” approach.