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$1,000,000 Settlement in Shoulder Dystocia/Brachial Plexus Injury Case

After a jury was empaneled before the Honorable Anthony Pugliese, J.S.C. Daryl L. Zaslow, of Eichen Crutchlow Zaslow, LLP (Edison, Red Bank and Toms River), obtained a settlement for the Defendant Obstetrician’s $1,000,000 policy limits on behalf of 11 year old girl with a permanent brachial plexus injury she sustained during her birth. A portion of the settlement is being used to purchase an annuity which will result in total payments to the child of $824,800.72. Judge Pugliese formally approved of the settlement and the allocation of the settlement at a Friendly Hearing conducted before His Honor on May 23, 2016.

Ildeanis Martinez was born on May 4, 2004 at Our Lady Lourdes Medical Center and the delivery was performed by the defendant obstetrician. The medical records prepared by the delivering physician indicated that there was a “terminal bradycardia” or a significant drop in the baby’s heart rate during the very end of the labor process and that the physician chose to use a vacuum to extract or deliver the baby, ostensibly in an effort to avoid asphyxia and brain damage. The baby needed to be resuscitated and was acidotic at birth, and she had Apgar scores of 2 at 1 minute, 2 at 5 minutes and 5 at 10 minutes. The infant Plaintiff was also not moving her right arm at birth.

Notably, neither the medical records prepared by the obstetrician or the nurses recorded that this delivery was complicated by shoulder dystocia. Additionally, during his deposition, the defendant insisted that the delivery was not complicated by shoulder dystocia. Mr. Zaslow and his experts maintained, however, that the delivering physician failed to recognize or record that the delivery was complicated by shoulder dystocia. In support of this argument, Mr. Zaslow pointed to the fact that 2 maneuvers typically used by obstetricians to resolve a shoulder dystocia were used during the delivery.

Shoulder dystocia is an obstetrical emergency which occurs when a baby’s shoulder gets trapped behind the mother’s pubic bone during delivery. In these circumstances the physician is required to use certain maneuvers to free the stuck shoulder without causing injury. To prevent injury to the brachial plexus nerves running from the neck through the shoulder/arm, the standard of care requires that the delivering physician not exert excessive force on the baby’s head in attempting to deliver the baby.

In this delivery, Mr. Zaslow argued that the defendant applied too much traction or pulling on the baby’s head as he attempted to free the shoulder, resulting in a permanent brachial plexus injury, and limited function of the shoulder, arm and hand known as Erb’s Palsy. The child had nerve surgery at 4 months of age and still has residual loss of motion and weakness in her right arm.