Injuries: Erb’s Palsy
Facts and Claim of Liability:
Infant plaintiff was born on December 11, 2007 at Defendant Hospital Flushing Hospital Medical Center via vaginal delivery. He weighed 8 lbs 11 oz.
On the day of delivery, at around 6 a.m., plaintiff mother arrived at defendant hospital complaining of contractions. About an hour later, she was admitted, and sent to labor and delivery. She had a sonogram, and a male doctor who was present (defendant doctor) informed her that the baby was “big.” Plaintiff mother recalls that this was not the first time she had heard this about one of her children – she had been told the same thing about her son Sebastian (who was born years earlier), and because of this Sebastian’s birth had been difficult, and ultimately resulted in his suffering from Erb’s palsy. Plaintiff mother recalls telling defendant doctor all of this, as well as telling him to perform a caesarian section if he saw “anything wrong.” Although plaintiff mother’s first language is Spanish, she said this in English, as she had not been provided an interpreter and she did not think defendant doctor spoke Spanish. Despite her fears, defendant doctor told her that they would try to “deliver normally,” and that a caesarian section would be performed only in the case of an emergency.
At around 11 a.m., plaintiff mother began experiencing very strong contractions. She was given an epidural at her request. Less than two hours later, the baby was born. Plaintiff mother recalls seeing vivid purple marks under the baby’s nose and purplish, reddish marks (similar in appearance to broken capillaries) on his forehead. Almost immediately after his birth, one of the doctors present informed plaintiff mother that there was something wrong with the baby’s arm. Eventually, the baby was diagnosed with Erb’s palsy.
Fitzgerald & Fitzgerald filed suit in Queens County Supreme Court, arguing that defendant doctor and defendant hospital departed from good and accepted medical practice in the care of infant plaintiff in failing to recommend a caesarian section to plaintiff mother, failing to perform a caesarian section once it became clear the baby was failing to descend, and in improperly delivering the child once dystocia had been encountered. Ultimately, Fitzgerald & Fitzgerald settled with defendant doctor for a total of $500,000.00., including payment for pain and suffering, loss of wages, non-medical damages, and future medicals. Fitzgerald & Fitzgerald continues to pursue the claim against defendant hospital.