A Montgomery Erb’s palsy lawsuit is a birth-injury claim shaped by the UK Supreme Court’s 2015 decision in Montgomery v Lanarkshire Health Board, which held that doctors must warn expectant patients about material delivery risks — including shoulder dystocia, the complication that most often causes Erb’s palsy — and must offer reasonable alternatives such as a cesarean section. When a mother is not told about those risks and her child is later born with a brachial plexus injury, the failure to obtain informed consent can itself be the basis for a malpractice claim.
What Happened in Montgomery v Lanarkshire
Nadine Montgomery was diabetic and of small stature. During a vaginal delivery she experienced shoulder dystocia, a complication in which the baby’s shoulder becomes lodged behind the mother’s pubic bone after the head has been delivered. Her son suffered a hypoxic brain injury that caused cerebral palsy. Montgomery sued Lanarkshire Health Board, arguing that her obstetrician had never told her about the 9–10% risk of shoulder dystocia that diabetic mothers face in vaginal delivery, and had never offered a cesarean section as an alternative.1The MDU. Montgomery and Informed Consent
The obstetrician acknowledged that she had a personal policy of withholding this information. She believed the risk was small and that disclosing it would push patients toward cesareans, which she did not consider in their best interest.239 Essex Chambers. Montgomery v Lanarkshire Health Board In March 2015 the Supreme Court ruled unanimously in Montgomery’s favor and awarded her over £5 million in damages.1The MDU. Montgomery and Informed Consent
The Consent Standard the Court Established
Montgomery overturned the longstanding Bolam test, under which doctors themselves set the standard for what information a patient needed to hear. The Supreme Court replaced it with a reasonable-patient test: a doctor has a duty to inform patients of any material risk in a proposed treatment, and of any reasonable alternative. A risk is material if a reasonable person in the patient’s position would likely attach significance to it, or if the doctor knows or ought to know that the particular patient would.3BMJ. Montgomery and Informed Consent
The court recognized only narrow exceptions. A doctor may withhold information if the patient expressly declines it, if disclosure would be seriously detrimental to the patient’s health (the therapeutic exception), or in an emergency where the patient cannot make a decision. The justices framed the change in terms of the doctor-patient relationship itself, describing patients as “widely regarded as persons holding rights, rather than as the passive recipients of the care of the medical profession.”239 Essex Chambers. Montgomery v Lanarkshire Health Board
How Montgomery Changed Erb’s Palsy Claims
Since 2015, the ruling has driven an increase in obstetric negligence cases involving consent, and its reasoning has influenced courts in Singapore, Australia, and Canada, where patient-centered standards were already recognized.3BMJ. Montgomery and Informed Consent4PubMed Central. Montgomery v Lanarkshire Health Board and Informed Consent
The practical significance for Erb’s palsy litigation is that a claim no longer has to turn only on how the delivery was performed. If a mother has recognized risk factors — diabetes, a large baby, prolonged labor — and was not told about the risk of shoulder dystocia or offered a cesarean, the omission itself can support a case. The question is whether the doctor gave the mother the information she needed to choose.
What Erb’s Palsy Is and Why Consent Matters Here
Erb’s palsy is a nerve injury that occurs when the brachial plexus, the network of nerves running from the neck through the shoulder and into the arm, is stretched or torn during delivery. In the classic form, the upper nerve roots (C5 and C6) are damaged and the infant’s arm hangs limply in what clinicians call a “waiter’s tip” posture. More extensive injuries involve additional roots (C7, C8, and T1), and the most severe global injuries affect the entire arm.5National Library of Medicine. Erb Palsy6Hospital for Special Surgery. Erb’s Palsy and Brachial Plexus Birth Injuries
The injury most often occurs during shoulder dystocia. Known risk factors include a large baby (macrosomia), maternal diabetes, and prolonged or unusually rapid labor.7PubMed Central. Brachial Plexus Injury and Litigation6Hospital for Special Surgery. Erb’s Palsy and Brachial Plexus Birth Injuries5National Library of Medicine. Erb Palsy8Medscape. Neonatal Brachial Plexus Palsy
These are exactly the kinds of risks Montgomery says a mother should be told about when she has risk factors that make shoulder dystocia more likely. The permanence of severe cases is what makes the missing conversation matter: a mother who was told a cesarean would eliminate the risk might have chosen one.
Building a Claim: Duty, Breach, Causation, Damages
An Erb’s palsy lawsuit is a medical malpractice case. To succeed, the family must prove four elements.
- Duty of care. The healthcare provider had a legal obligation to provide care consistent with what a reasonably competent provider would deliver in similar circumstances.9Rheingold Law. Erb’s Palsy and Medical Malpractice
- Breach. The provider fell short of that standard. Common allegations include using excessive force during delivery, misusing forceps or vacuum extractors, failing to perform a timely cesarean, or failing to manage known risk factors such as a large baby or gestational diabetes. A Montgomery-style consent claim adds another breach: failing to disclose material risks or reasonable alternatives.9Rheingold Law. Erb’s Palsy and Medical Malpractice
- Causation. The breach must have caused the child’s injury. This is often the most contested element, and defendants frequently argue that natural forces of labor, not the provider’s actions, caused the nerve damage.10Trantolo Law. Erb’s Palsy
- Damages. The injury caused measurable harm: medical expenses, ongoing therapy, or permanent loss of function.9Rheingold Law. Erb’s Palsy and Medical Malpractice
Nearly every state requires a qualified medical expert to review the case before it can proceed. New York plaintiffs must obtain a Certificate of Merit confirming an expert believes the case has a valid basis.9Rheingold Law. Erb’s Palsy and Medical Malpractice Missouri requires an affidavit from a medical expert stating the provider failed to meet the standard of care.11Brown & Crouppen. Erb’s Palsy Lawsuit
The delivering physician or midwife is the most common defendant, but hospitals can also be liable. Under the doctrine of respondeat superior, a hospital is responsible for the negligent acts of its employees when those acts fall within the scope of employment, and that includes nurses and residents as well as staff physicians.12FindLaw. Vicarious Liability for Medical Malpractice Claims Hospitals may also face direct liability for negligent hiring, training, supervision, or failure to enforce proper protocols.13PubMed Central. Vicarious Liability in Healthcare When a hospital argues that a doctor was an independent contractor, courts look past the contract label to the actual relationship, including who controlled the doctor’s schedule and how the physician was held out to patients.
Damages a Family Can Recover
Families who prevail can recover both economic and non-economic damages. Economic damages cover quantifiable losses: past and future medical expenses (surgery, physical and occupational therapy, adaptive devices), lost parental wages from caregiving, home modifications, and the child’s lost future earning capacity if the injury results in permanent limitations.14Wagner Reese. Erb’s Palsy Claims and Compensation Non-economic damages account for the child’s pain and suffering, diminished quality of life, and the family’s emotional distress.15Ben Crump Law. Erb’s Palsy Lawyer
The lifetime cost of a brachial plexus injury requiring surgery can be substantial. One study of privately insured patients estimated a median total economic cost of roughly $840,000 per person, with lost productivity and disability payments accounting for the vast majority of that figure.16PubMed Central. Economic Burden of Brachial Plexus Injuries
Recent reported US settlements and verdicts illustrate the range. A Connecticut case involving complete loss of function in the dominant arm settled for $5,000,000 in 2025, and an Illinois case involving permanent nerve damage from shoulder dystocia settled for $4,500,000 that same year. A less severe, non-surgical injury in New Jersey settled for $500,000.17Lawsuit Information Center. Value of Birth Injury Malpractice Lawsuits A Minneapolis jury awarded $8,986,900 against a midwife who failed to refer a diabetic patient with a large baby to an obstetrician and then pulled and twisted the baby’s head when shoulder dystocia occurred; $6.6 million of that verdict was for future pain, suffering, and emotional distress alone.18Stopping Medical Mistakes. $8,986,900 Jury Verdict in Brachial Plexus Birth Injury Case A New York appellate court upheld a $3,150,000 verdict where the obstetrician underestimated the baby’s weight and did not perform a cesarean after labor stalled for four hours.19Medical Malpractice Lawyers. $3.1M Erb’s Palsy Verdict Upheld
Some states cap certain damages. Missouri caps non-economic damages annually, with a 2024 cap of $465,531 for non-catastrophic injuries and $814,679 for catastrophic injuries.11Brown & Crouppen. Erb’s Palsy Lawsuit Indiana does not currently cap non-economic damages in birth injury malpractice cases.14Wagner Reese. Erb’s Palsy Claims and Compensation
Attorneys handling these cases almost universally work on a contingency-fee basis. The family pays nothing upfront, and the lawyer collects a percentage of any settlement or verdict, often around one-third of the net award, with the exact rate varying by state and firm.20Super Lawyers. The Legal Process and Timeline in Birth Injury Lawsuits If the case is unsuccessful, the family owes no legal fees.21Cerebral Palsy Guide. Erb’s Palsy Lawyer
Deadlines to File
Every state imposes a deadline for filing a medical malpractice claim. Most states set this at two to three years. Some are shorter — Ohio and Tennessee allow just one year — and some are longer, with Minnesota allowing four.22Cerebral Palsy Guide. Erb’s Palsy Statute of Limitations What sets birth-injury cases apart is that most states toll, or pause, the deadline for children who cannot file on their own behalf. Pennsylvania permits claims until the child’s twentieth birthday. New York allows claims until age ten. Alabama and Illinois allow filing until age eight.23Levin Perconti. Statute of Limitations for Birth Injury Claims Parents’ own claims usually run on a shorter, standard deadline and can expire long before their child’s.
Many states also apply a discovery rule, which starts the clock when the injury is or should have been discovered rather than at birth. New York, Missouri, and Minnesota do not apply a discovery rule to these claims; the deadline runs from the date of the medical event regardless of when the family learned of the injury.23Levin Perconti. Statute of Limitations for Birth Injury Claims Because these rules vary sharply, a family considering a claim should speak with an attorney early rather than assume the clock will wait.