Yes, you can sue an Indiana hospital for Erb’s palsy if substandard delivery care by its staff caused your baby’s injury. Indiana holds a hospital liable for on-the-job errors by the nurses, residents, and doctors it employs. That liability can reach an outside doctor the hospital presented as its own staff. Because Erb’s palsy alone does not prove malpractice, an Erb’s palsy lawyer in Indiana reviews the delivery records first.
Key Takeaways
- What you must prove: The care fell below the accepted standard and caused the injury. The diagnosis alone does not establish a mistake.
- Hospital liability: The hospital is liable for on-the-job errors by its nurses, residents, and employed doctors. Liability can extend to outside doctors it presented as its own staff, so check your admission forms.
- Your child’s deadline: Under the Medical Malpractice Act, a child injured before age 6 must file by the 8th birthday. Mark that date today.
- The mother’s deadline: If the mother was also injured, she must file within 2 years of the error.
- Qualified status: A qualified hospital’s status subjects your claim to the review panel process and a damages cap. Confirm the hospital’s status before you file.
- First step: Request the delivery records in writing. The hospital must act within 30 days, with one possible 30-day extension.
Is the Hospital Responsible for Its Nurses and Doctors?
Yes, when the staff member at fault is a hospital employee. The Indiana Supreme Court restated the rule in Sword v. NKC Hospitals. An employer is liable for an employee’s wrongful acts committed within the scope of employment.
In a delivery room, the hospital may employ:
- Labor and delivery nurses who monitor you and your baby.
- Residents training at the hospital.
- Obstetricians on the hospital’s payroll.
- Certified nurse midwives the hospital employs.
Outside doctors follow a separate rule. Under Sword, a hospital is deemed to have held itself out as your provider of care unless it told you otherwise. The notice must say the care comes from an independent contractor, not under the hospital’s control. Meaningful written notice, acknowledged at admission, generally protects the hospital.
Whoever made the error, you must prove the care fell below the standard a careful delivery team would follow. A weak arm does not prove negligence on its own. Our article on how Indiana holds hospitals responsible for birth injuries walks through each theory of liability.
What Delivery Mistakes Can Cause Erb’s Palsy?
Erb’s palsy is a brachial plexus nerve injury that weakens the upper arm, and it can happen during a difficult delivery. MedlinePlus, the National Library of Medicine’s health site, lists these delivery situations as causes or risk factors. For each one, the delivery note records how the team responded.
| Delivery situation | Who in the room was involved |
| A larger-than-average baby, such as the infant of a diabetic mother, or maternal obesity | Obstetrician, midwife, admitting nurse |
| The shoulder gets stuck after the head delivers (shoulder dystocia) | Delivering doctor or midwife, assisting nurses |
| The baby’s head and neck pull toward the side as the shoulders pass | Delivering doctor, resident, or midwife |
| Pressure on the baby’s raised arms during a breech delivery | Delivering doctor or midwife |
Erb’s palsy can occur without any mistake. MedlinePlus notes that compression inside the womb can affect the nerves. A C-section lowers the risk but does not prevent the injury, and it carries other risks.
The legal question is whether the team’s response met the standard of care. If you are still sorting out the diagnosis, start with how Erb’s palsy differs from other brachial plexus injuries.
How Long Do You Have to File If Erb’s Palsy May Heal?
Your child has until the 8th birthday to file when the injury happened before age 6. Indiana Code 34-18-7-1 sets this rule for medical malpractice claims. The clock runs from the date of the error, not from the diagnosis. Mark the date.
| Whose claim | Deadline | Indiana law |
| Your baby, injured before age 6 | The child’s 8th birthday | IC 34-18-7-1(b) |
| The mother | 2 years from the date of the error | IC 34-18-7-1(b) |
Waiting makes medical sense. MedlinePlus reports that most babies fully recover within 3 to 4 months. Doctors may consider surgery if strength does not improve by 3 to 9 months. Few parents want to accuse their delivery team over an arm that may recover on its own.
Those months fit inside your child’s deadline. If the mother was also injured, her 2-year clock leaves far less room and keeps running while you wait. Filing a proposed complaint pauses the deadline until 90 days after you receive the review panel’s opinion. Different deadlines or notice rules can apply to a public hospital or a hospital that is not qualified, so ask about both early. Our post on the Indiana birth injury filing deadline works through more timing examples.
How Do You File an Erb’s Palsy Claim in Indiana?
You file in five steps, starting with who employed the delivery team and ending with the review panel’s opinion. Each step’s answer sets the rules for the next.
Step 1: Find Out Who Employed the Delivery Team
Start here, because the answer tells you which defendant to name: the hospital, the doctor’s practice, or both. These documents help:
- Your bills, which may show whether the doctor billed through a private practice or the hospital.
- Your admission and consent forms, which may name a doctor as an independent contractor.
- The delivery note, which lists who attended the birth.
Step 2: Check Whether the Hospital Is a Qualified Provider
A qualified hospital has filed proof of financial responsibility with the Commissioner of Insurance and paid a surcharge. For an error after June 30, 2019, it pays up to $500,000. The Patient’s Compensation Fund pays the rest, up to $1,800,000 in total.
A hospital that is not qualified falls outside the Medical Malpractice Act. No review panel is required, and the Act’s cap does not apply. That difference changes your filing path and your possible recovery. Our page on Indiana hospital malpractice covers hospital claims in more depth.
Step 3: Request Your and Your Baby’s Delivery Records
Federal privacy rules give you the right to a copy of your medical records, and a hospital may require the request in writing. A parent who makes the baby’s health care decisions acts for the baby. Ask for:
- The delivery note describing how the shoulders were delivered.
- Fetal heart rate monitor strips.
- Nursing notes from labor and delivery.
Keep copies of everything.
Step 4: File a Proposed Complaint With the Department of Insurance
Against a qualified hospital, most cases start with a proposed complaint rather than a lawsuit. Indiana law treats it as filed when delivered, or mailed by registered or certified mail, to the Commissioner. The Department of Insurance accepts another trackable delivery method under its published practice. Do not rely on untracked regular mail to meet the deadline.
Some claims skip the panel. For example, both sides can agree in writing to skip the panel, or you can sue for $15,000 or less and give up any recovery above that.
Step 5: Get the Medical Review Panel’s Opinion
A Indiana medical review panel forms only on request. You or the hospital must ask for one. It has three health care providers and one attorney, who chairs without a vote. Court filing generally waits for the panel’s opinion, and the statute gives the panel 180 days from the last member’s selection.
The opinion is admissible as evidence, but it is not conclusive, so a negative opinion does not end your case.
Frequently Asked Questions
Is Erb’s Palsy Malpractice?
No, Erb’s palsy is not medical malpractice in every case. MedlinePlus notes the nerves can be affected by compression inside the womb, and a C-section reduces the risk without preventing it. Erb’s palsy becomes malpractice when the delivery team’s care fell below the accepted standard and caused the injury.
How Much Compensation Can You Get for Erb’s Palsy?
Compensation for Erb’s palsy depends on your child’s medical care, therapy, and any lasting loss of arm function. Against a qualified provider, Indiana caps total recovery at $1,800,000 for an error after June 30, 2019. The provider pays up to $500,000, and the Patient’s Compensation Fund pays the rest.
Can the Mother File Her Own Malpractice Claim?
Yes, the mother can file her own malpractice claim for injuries she suffered during the delivery. Her claim stands apart from the baby’s claim. She has 2 years from the date of the error. The extension to the child’s 8th birthday does not apply to her.
Get a Free Erb’s Palsy Case Review
If a hospital’s care harmed you or your baby, we can review what happened and explain your options for an Erb’s palsy claim. Call 219-464-3246 or contact us to schedule a free consultation today.
Seasoned Indiana attorney Steven L. Langer, practicing law since 1980, is a Fellow of the American College of Trial Lawyers and a former president of the Indiana Trial Lawyers Association. Langer & Langer represents clients in hospital birth injury claims throughout Indiana, from our office in 4 Indiana Ave, Valparaiso, IN 46383.
