Erb’s palsy is a injury to a child’s brachial plexus nerves caused by an abnormal or difficult child birth. The brachial plexus is a cluster of nerves in your neck that control all arm movements. Erb’s palsy can be caused by excessive pulling on the shoulders of the infant by the medical staff during delivery. The resulting paralysis affecting the movement of the child’s shoulders, arms or hands can be partial or complete. And while sometimes the paralysis can resolve on its own, it could also necessitate physical therapy or surgery.
In a recent Illinois case, baby Tanisha Ruffin’s shoulder became impacted on her mother’s pelvic bone during delivery, which put stress on Tanisha’s shoulders. In order to free up her shoulders from her mother’s pelvic bone, the defendant obstetrician testified that he used a vacuum extractor cup and a gentle traction on the baby’s head to manipulate her out. Nonetheless, Tanisha was born with Erb’s palsy because of the damage to the brachial plexus nerve network in her shoulder area.
The big issue at trial was whether the Illinois birth injury was caused by excessive traction with the extractor cup, or by the natural propulsive forces of labor.
What made this case even more unusual was that the defendants used an engineer as their expert, and not a doctor. Typically in a medical malpractice case in Illinois, the testifying expert is a doctor who practices the same branch of medicine as the defendant. Yet Dr. Grimm, an engineering professor at Wayne State University,asserted that she was qualified to testify in this case because of her experience calculating forces.
As part of her engineering research, Dr. Grimm had made commercially available software package called Mathematical Dynamic Models (MADYMO) that is often used to calculate the forces that pummel crash test dummies. After a hearing, the trial judge concluded that Grimm’s methodology satisfied the requirements of Frye v. U.S., 293 F. 1013 (D.C. Cir. 1923) regarding expert qualifications, and permitted her to provide an opinion on what caused Tanisha’s brachial plexus nerve injury.
Dr. Grimm testified that defendant’s use of a vacuum extractor cup and traction during Tanisha’s delivery would not have caused her Erb’s palsy. The jury found in favor of the defendant doctors.
Tanisha’s mother asked for a new trial and one of her arguments was that Grimm was not qualified to give expert testimony on the cause of Tanisha’s injuries. It was argued that Grimm was not a physician and her testimony did not satisfy the Frye test. If the Appellate Court had agreed with Tanisha’s mother then there would be a new trial, that didn’t include Dr. Grimm’s testimony.
In the appeal, the plaintiff contended that Dr. Grimm should have been barred from testifying as to causation because the question before the jury required an assessment of the causation evidence to a reasonable degree of medical certainty and Dr. Grimm is not a medical doctor.
The appellate court stated that Dr. Grimm’s articles on the forces of labor and shoulder dystocia have been published in peer-reviewed journals since 2000. There was also the added weight that these articles were published in a prestigious medical journal, The American Journal of Obstetrics and Gynecology.
The court concluded that “Dr. Grimm’s model had been generally accepted in both the engineering and obstetric communities as amply supported by the evidence at the Frye hearing,” thereby denying plaintiff’s claim for a new trial. Ruffin Ex Rel Sanders v. Boler, 2008 WL 2550672 (1st Dist. 225, 2008).
Kreisman Law Offices in Chicago has been practicing medical malpractice and birth injury law in Cook County and Illinois for over 30 years, serving communities such as Brookfield, Forest Park, Morton Grove and Wheeling.
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