Forces of Labor Defense Still Contested

In most Erb’s palsy medical malpractice cases, defendants claim that the injury was caused by the natural forces of labor and the maternal expulsive efforts, rather than the malpractice of the defendant physician.  Trief & Olk has consistently argued that the “science” behind the forces of labor defense is actually junk science, created by a small group of obstetricians based on unreliable data as a means to avoid liability.  After a 2012 decision, Muhammad v. Fitzpatrick, from the New York Appellate Division’s Fourth Department (covering Western New York), it appeared that this junk science argument was being rejected. More recent cases demonstrate that the forces of labor defense is still being given credit. Therefore, it is important to find medical malpractice attorneys that can appreciate both the complex medical and scientific aspects of an Erb’s palsy claim and the legal aspects.

The Muhammad decision was based on two different legal findings: (1) the defendants failed to establish that the forces of labor theory was generally accepted in the scientific community and (2) the defendants failed to establish that the forces of labor could generally cause Erb’s palsy (general causation) and specifically caused the plaintiff’s Erb’s palsy (specific causation).

Since the Muhammad case, several plaintiffs have relied upon it to argue for preclusion of the forces of labor defense, to varying degrees of success. Some cases have actually found that the forces of labor theory is generally accepted by the scientific community, but still barred its introduction because of the lack of evidence of general or specific causation. Others took the direct opposite stance as the Court in Muhammad, allowing presentation of the theory to a jury after the Court found that the theory was scientifically accepted and that there was sufficient evidence as to general and specific causation.

Since this is a developing area, if you have an Erb’s palsy medical malpractice claim, it is crucial to find an attorney who can appreciate both the scientific  and legal aspects of your Erb’s palsy medical malpractice claim. While seeking preclusion of the forces of labor theory may not be possible in all cases, it should be considered carefully, along with other ways to address the defendant’s efforts to shift blame from their own malpractice to the natural efforts of the mother during labor and delivery.

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