In the vast majority of medical malpractice cases involving a baby who suffers a brachial plexus injury at birth, the central issue which is being contested is whether the obstetrician used excessive force when freeing the entrapped shoulder. The defense typically advances three arguments:
- the brachial plexus injury did not occur during the delivery but on chronic stretching of the brachial plexus in utero prior to delivery;
- the obstetrician used only gentle traction;
- whatever the degree of traction used, it was necessary because without prompt delivery, the baby would have died or would have been severely brain damaged.
The proof of the first defense is based on reports of babies having a brachial plexus injury even though they were delivered via Caesarian Section. This defense overlooks the fact that improper techniques used during the Caesarian, including an incision which is too small or the use of inappropriate traction, can cause a brachial plexus injury. In addition, if there is no muscle atrophy of the affected arm and shoulder at birth, the injury cannot be chronic.
The second defense is basically nothing more than a self-serving assertion by the obstetrician that he was “gentle.” It ignores the fact that gentle traction cannot cause severe injuries to the brachial plexus.
The third defense is an excuse for the failure to use proper technique, that is, to follow the shoulder dystocia drill in which all obstetricians are trained. The fact that a shoulder dystocia is an obstetrical emergency does not mean that the obstetrician is permitted to panic and use excessive force to deliver the baby.