A state supreme court recently upheld a $3 million jury award in a lawsuit claiming that a doctor caused a baby to sustain an Erb’s palsy birth injury.

This decision will allow plaintiff Monica B. to keep her $3 million jury award to compensate her and her son for a birth injury allegedly sustained due to the negligent actions of Dr. Peter J. Wong. Monica claimed that Wong used excessive force when delivering her son, Amari.

According to Monica, when the baby’s shoulder became obstructed by Monica’s pelvis, Wong’s force in dislodging it allegedly caused damage to the shoulder nerve. This reportedly left her son withErb’s palsy, a condition of permanent paralysis of the arm.

Erb’s palsy birth injury usually occurs when there is difficulty moving a baby’s shoulder during delivery. The condition results in the inability to flex or rotate the arm at the shoulder. When the damage is limited to bruising and swelling around the brachial nerves, the condition may be temporary and movements may return within a few months. However, when the nerves are completely torn, the damage may be permanent.

Stanford Children’s Health states that birth injury occurs for a variety of reasons including but not limited to large size, prematurity, cephalopelvic disproportion (mothers pelvis is unsuitable for vaginal delivery), prolonged labor, breech delivery, and generally difficult labor. These factors may make it more likely for the baby to become injured or may make delivery more challenging for the doctor.

After the jury awarded Monica a $3 million birth injury award, Wong appealed the decision. He claimed that Dr. Marc Engelbert, one of Monica’s medical experts, gave an inadmissible opinion because it was only based on the fact that Amari suffered an injury. Wong argued that the opinion, therefore, did not satisfy the Daubert standard for expert witnesses.

The Delaware Supreme Court panel rejected Wong’s arguments after finding that Engelbert’s given opinion was based on medical records, eyewitness accounts, and other pieces of evidence. Additionally, the panel noted that Engelbert’s extensive experience gave his testimony weight.

“Dr. Engelbert relied upon his nearly 30 years of experience as an obstetrician and gynecologist in forming his opinion that, absent other causes not relevant here, excessive lateral traction during delivery caused Amari’s permanent brachial plexus injury,” the three-judge panel wrote.

Wong also claimed that Monica should not have been allowed to ask him, his experts, and her expert’s questions during the trial regarding the frequency of Erb’s palsy birth injuries. He claimed that these questions were an attempt to make him look negligent based on the rarity of the injuries. However, the panel stated that the questions were fair and had been asked to establish facts and experts’ experience.

“Furthermore, the Superior Court noted that the statistical testimony was ‘an appeal to the common sense of the jury and directly rebutted defendants’ trial theory that mother’s endogenous forces caused the injury,’” the panel determined. “We agree with the Superior Court and affirm for the reasons assigned by it.”

The Erb’s Palsy Birth Injury Lawsuit is Case No. 133 2018 in the Supreme Court of the State of Delaware.