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Jury Verdict for Plaintiff Returned in Erb’s Palsy Case

By Attorney Michael B. Zerres on November 18, 2010

I was recently on trial in Monmouth County on a medical malpractice case involving a birth injury known as an Erb’s Palsy. This is an injury to the brachial plexus which typically occurs at delivery when there is a shoulder dystocia (stuck shoulder) following delivery of the head, where the obstetrician pulls too hard on the head during the delivery, stretching and tearing the brachial plexus (nerves coming out of the cervical spine and running into the shoulder and arm). The defendant obstetrician was Sardana Belkin M.D., formerly with an OB/GYN group in Holmdel.

We were able to establish that there were four risk factors for a stuck shoulder in this case, ie, the baby’s weight of 9lbs 1 oz (larger babies tend to get stuck more often), the mom’s weight at delivery (maternal obesity increases the chances of a large baby), a prior concern of a large baby in a prior pregnancy, and, the fact the multiparous woman (more than one child) tend to have larger babies. Given these risk factors we were able to show that Dr. Belkin should have performed an estimated fetal weight by ultrasound at the time of the last office visit before surgery; had that been done it would likely have shown the baby to be large and would have prompted a conversation with the parents about the risk of shoulder dystocia and the option for a c-section. The mom in this case testified she would have opted for a c-section had she known the approximate size of the baby and the risk of a stuck shoulder. Had a c-section been done, the shoulder dystocia would never have occurred and the baby very likely would have been born without any injury.

Additonally, when the shoulder became stuck at delivery, there was evidence that Dr. Belkin applied traction which was excessive, as observed by the child’s father, and the child was born with a left brachial plexus injury (same side as the stuck shoulder).

The child has not had surgery and by the time of trial was 7 years old. She had received PT and OT in the past and had improved significantly since birth, but yet had some permanent, but mild, limitations of her left upper arm, which were demonstrated to the jury through the testimony of a pediatric neurologist.

Prior to trial the doctor refused to consent to settle, but subsequently changed her mind during trial. However, her insurance company was only willing to offer $125,000.00 to settle the case, contending the young girl’s injury was too mild. The jury returned a verdict in favor of plaintiff and against Dr. Belkin, finding that she was negligent, and awarded damages in the amount of $450,000.00. With pre-judgment interest, the young lady’s recovery will exceed $560,000.00.

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