The Turkewitz Law Firm, 228 East 45th Street, New York, NY 10017  Phone: (212) 983-5900

Childbirth — Medical Malpractice — Birth Injury

Baby's palsy blamed on excessively forceful delivery

Settlement: $1,000,000
Case: Chelsea Xxxxxxxxx-Xxxxx an Infant by Her Mother & Natural Guardian Ligia Xxxxx, & Ligia Xxxxx Individually v. [HM], [IK], & Lutheran Medical Center, No. XXXXX/02
Court: Kings Supreme
Judge: Joseph S. Levine
Date: 3/27/2006

Plaintiff Attorney(s): Eric Turkewitz, The Turkewitz Law Firm, New York, NY

Defense Attorney(s): Daniel G. Federico, Garson, Gerspach, DeCorato & Cohen L.L.P., New York, NY

Facts & Allegations:

 At 3:21 a.m. on Nov. 15, 2000, plaintiff Chelsea Xxxxxxxxx-Xxxxx was born. The delivery was performed at Lutheran Medical Center, in Brooklyn. During the delivery, doctors encountered a shoulder dystocia--one of Chelsea's shoulders had become caught within her mother's birth canal. The dystocia was overcome, but doctors subsequently determined that Chelsea suffers Erb's palsy, nerve damage that causes one arm to hang limply. Chelsea's mother, Ligia Xxxxx, claimed that the palsy resulted from damage that was caused by excessive traction that was used to relieve the dystocia.

Xxxxx, acting individually and as Chelsea's parent and natural guardian, sued the resident who delivered Chelsea, Dr. [IK]; the attending physician, Dr. [HM]; and Lutheran Medical Center. Xxxxx alleged that the defendants failed to properly relieve Chelsea's shoulder dystocia and that their failures constituted medical malpractice.

Xxxxx claimed that the shoulder dystocia was recognized at the time of birth and that [IK] failed to undertake any special maneuvers or procedures to relieve the impacted shoulder. She contended that [IK] instead used excessive traction on the infant's head to accomplish delivery.

[IK]'s notes indicated that a McRobert's maneuver was performed and that suprapubic pressure was applied. Neither procedure typically involves traction of the head. Plaintiffs' counsel acknowledged that such procedures would have satisfied good, accepted practice standards However, [HM], who entered the room minutes after Chelsea's birth, wrote in his notes that "they encountered mild shoulder dystocia and without any special force or maneuver, the baby was delivered without difficulty."

Plaintiffs' counsel also contended that the timing of the stages of labor had been written over in the medical records. She contended that the second stage of labor, full cervical dilation, was noted to have started at 12:20 a.m. in one record, but that, in another record, the second stage of labor was noted to have started at 2:10 a.m., with the original time written over. Given that Chelsea was born was 3:21 a.m., this would have "shortened" the second stage of labor considerably. Plaintiffs' counsel contended that a labor of almost three hours is a prolonged labor for a woman who has previously given birth, even without the presence of a shoulder dystocia.

Injuries/Damages:
Erb's palsy; scar and/or disfigurement, arm; physical therapy
Chelsea suffers Erb's palsy of her right, dominant, arm. The condition was diagnosed immediately after her birth. Plaintiffs' counsel contended that Chelsea suffers significant shortening of her right arm, contractures of the arm's shoulder and elbow, and lack of reflexes in the upper extremity. Chelsea also holds the arm in a contracted, inwardly rotated manner. Plaintiffs' counsel contended that the injuries have diminished Chelsea's earning capacity. Xxxxx claimed that she was prepared to return to work after Chelsea's birth and had lined up child care, but that as a result of all of the therapy needed for the child, she stayed at home and sustained lost income. She sought recovery of damages for Chelsea's diminished earning capacity and Chelsea's past and future pain and suffering. She also presented a derivative claim. Defense counsel contended that Chelsea suffers merely mild Erb's palsy for which she undergoes physical and occupational therapy.

Result:
The parties agreed to a $1 million structured settlement that has a total guaranteed payment of $3,072,476 for Chelsea. Chelsea's mother will recover $27,000 for her lost earnings. Lutheran Medical Center's insurer paid the entire settlement. The actions against the doctors were discontinued.

Plaintiff(s): Ligia Xxxxx: $27,000 plaintiff's total award
                     Chelsea Xxxxxxxxx-Xxxxx: $3,072,449 plaintiff's total award

Demand: None reported
Offer: None reported
Insurer(s): Medical Liability Mutual Insurance Co. for Lutheran Medical Center