How to File a Lawsuit for Erb’s Palsy


Childbirth is a very traumatic time both for the mother and the baby. Any negligence during childbirth can have devastating, life-altering effects on children. Despite this, thousands of children suffer from disabilities from birth injuries, some of which are fatal. Sadly, these birth injuries are preventable, and most of them occur because of medical malpractice.

Many babies suffer from minor injuries during childbirth that heal on their own. But, some injuries can end in severe disabilities. However, there is a thin line differentiating between inborn malformations and birth injuries. While congenital diseases form in the womb, birth injuries usually happen when a child is being born. Medical negligence can result in severe complications during childbirth. When medical professionals do not perform due diligence or uphold the standard of care, the child and mother can sustain injuries.

There are several birth injuries, from Cerebral Palsy to Kernicterus. But, Erb’s Palsy is one of the most significant birth injuries. It results when healthcare professionals pull on the child during delivery and damage the nerves that send signals to our legs. Therefore, the limb cannot work.

Thankfully, you can take legal action when negligence causes Erb’s palsy. However, most medical negligence cases are complicated. But what is the procedure to file an Erb’s palsy lawsuit? Following is a short guide to file a lawsuit.

Step One: When should you consider legal action?

Consult an erbs palsy attorney as soon as possible if your child develops it. Your child will require costly, life-altering treatments. So, it is better to initiate proceedings to obtain compensation to pay for your treatment. In addition, most states have time limits on when a victim can file a lawsuit. And waiting too long before filing your lawsuit can make you miss the deadline.

Some lawyers offer free consultations to potential clients. Take advantage of this opportunity to assess the strength of your claim.

Step Two: Send a legal notice

Your lawyer may recommend sending a legal notice to seek financial compensation from the medical practitioner. However, through a demand letter, you can initiate settlement proceedings instead of filing a lawsuit. The document will summarize your case and identify why you are eligible for monetary damages. In addition, demand letters explain ongoing care and medical expenses for the hurt caused by the practitioner.

Usually, people send demand letters for claims of small amounts of money. So, you might have to go to trial.

Step Three: Build a case

When the other party rejects your notice letter, you can begin to build a case. Your lawyer will gather the details of your complaint and note a timeline of events. You will have to provide them with any medical bills and relevant documents during this time. However, there are some vital details that your attorney will need to draft the lawsuit.

You have to tell them when and how the incident took place. Remember to write down notes about who is responsible for the damage. The lawyer may consult an expert to understand whether the injury was preventable.

Step Four: File the case

Now, the lawyer will file your claim. However, each jurisdiction has its own rules and procedures. So, your lawyer will choose the jurisdiction that is best for your lawsuit. After you file the case, you will become the plaintiff, and the medical professional will be the defendant.

After filing, the defendant will receive a summons to respond within a limited time.

Step Five: Discovery Phase

Once the defendants respond, the discovery phase will begin. Both sides will develop their arguments and collect relevant documents, including witness accounts, medical records, and photographs. Since you are claiming medical negligence, your attorney will have to prove that the injury occurred because of malpractice. You will also have to identify risk factors ignored by the doctors, such as the use of forceps or excessive force.

After gathering the evidence, both parties will present the findings to each other to conclude the matter.

Step Six: Begin negotiations for an out-of-court settlement

Going through a trial is a costly process. Therefore, most people prefer to reach a mutual settlement instead of a quick conclusion. You might have to appear before an arbitrator or mediator to iron out the terms. Plaintiffs may receive a sum of money as compensation.

However, your case may not settle, and you may have to proceed to the trial phase.

Step Seven: Trial

Not all lawsuits are successful during the trial, so it is a big gamble. Trials award higher compensation without a guarantee of a favorable outcome. So, most people do not want to go for that. During the trial, a judge and jury will listen to your arguments. They will try to understand whether the injury occurred because of the blatant negligence of the practitioner. There is a chance that you might lose the case. However, you can appeal the verdict for a favorable decision.

Why should you file an Erb’s Palsy lawsuit?

Caring for an injured child is heartbreaking and costly. Your child may require several rounds of treatment to help them lead a life without disability. While nothing can compensate you for the injury and heartbreak, a lawsuit can bring you justice. It can also prevent the same situation from happening to someone else.


Seeing your child suffering from a devastating injury is distressing. However, you can file a lawsuit to provide your child with the best possible care. With an experienced attorney by your side, you can get as much compensation as possible.



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