Birth Injury Malpractice in Georgia: Cerebral Palsy and Erb’s Palsy Claims

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A child who is born with an arm that will not move, or who is later diagnosed with cerebral palsy, leaves a family asking whether the delivery caused it and how long there is to find out. The medical sources describe injuries that can happen during a difficult delivery and conditions that start before birth, some with no known cause. The law sets a deadline for the child’s claim that runs from the fifth birthday, and cerebral palsy in a mild form may not be diagnosed until about that age.

Erb’s Palsy: Nerves Stretched at Delivery

The brachial plexus “is a network of nerves that sends signals from the spine to the shoulder, arm, and hand.” MedlinePlus explains that brachial plexus injuries “[s]ometimes … happen during childbirth when a baby’s shoulders become stuck during delivery and the nerves stretch or tear.” The nerves “can be affected by compression inside the mother’s womb or during a difficult delivery,” and MedlinePlus lists among the causes “[t]he infant’s head and neck pulling toward the side as the shoulders pass through the birth canal or surgical incision.” The form that affects only the upper arm “is also called Duchenne-Erb or Erb-Duchenne paralysis,” and the risk factors include “[d]ifficulty delivering the baby’s shoulder after the head has already come out (called shoulder dystocia).”

Recovery varies. “Most babies will fully recover within 3 to 4 months. Those who do not recover during this time have a poor outlook for full recovery.” Surgery “may be considered if strength does not improve by 3 to 9 months of age,” and “[i]t may take many years for healing to occur.” Complications include contractures that “may be permanent” and “[p]ermanent, partial, or total loss of function of the affected nerves, causing paralysis of the arm or arm weakness.”

Cerebral Palsy: When the Damage Happens

The National Institute of Child Health and Human Development (NICHD) describes cerebral palsy as “a group of brain disorders that affect muscles and body movement,” caused “by damage to parts of the brain that control muscle movement, balance, and posture.” The damage can occur “before, during, or shortly after birth or in the first few years of life,” and “[i]n many cases the exact cause of cerebral palsy is not known.” NICHD states that “[t]he majority of children with cerebral palsy were born with the condition.”

Among the causes before birth, NICHD lists a lack of oxygen in the brain, and it names what can cut off that oxygen: “Very low blood pressure in the mother, a torn uterus, detachment of the placenta, problems with the umbilical cord, or severe trauma to the infant’s head during labor and delivery.” Diagnosis can take years: “Most children with cerebral palsy are diagnosed during their first 2 years of life. But if symptoms are mild, a healthcare provider may not be able to make a diagnosis before the age of 4 or 5.” The condition’s signs “last throughout a person’s life,” and some people with cerebral palsy “may not be able to walk and need intensive, lifelong care, while others can walk and move with little or no help.”

The Child’s Deadline

For medical malpractice claims, OCGA 9-3-73(b) provides that “[a] minor who has not attained the age of five years shall have two years from the date of such minor’s fifth birthday within which to bring a medical malpractice action if the cause of action arose before such minor attained the age of five years.” A ceiling applies: no action may be brought by or on behalf of a minor “[a]fter the tenth birthday of the minor if such minor was under the age of five years on the date on which the negligent or wrongful act or omission occurred” (OCGA 9-3-73(c)(2)).

For example, imagine a child born on March 15, 2027, after a delivery alleged to have been negligent. The child’s fifth birthday is March 15, 2032, and two years from that date is March 15, 2034, the child’s seventh birthday. The tenth-birthday ceiling, March 15, 2037, comes later, so the seventh birthday is the deadline that matters for the child’s claim. A mild case of cerebral palsy diagnosed at four or five would leave two or three years before that date.

The Standard in the Delivery Unit

OCGA 51-1-29.5(c) reaches a health care liability claim arising from emergency medical care given in a hospital emergency department or obstetrical unit, and in such a claim a physician or health care provider is liable only on clear and convincing proof of gross negligence. The statute reaches only “emergency medical care,” which it defines by reference to acute symptoms of sufficient severity that the absence of immediate medical attention could reasonably be expected to place the patient’s health in serious jeopardy, and it excludes care after stabilization and unrelated care (OCGA 51-1-29.5(a)(5)). In Nguyen v. Southwestern Emergency Physicians, P.C., 298 Ga. 75 (2015), the Supreme Court held that whether the patient’s condition meets that definition “is an objective, rather than subjective, test,” so that a provider’s own view of the patient’s condition is relevant evidence but is not controlling.

Shoulder Dystocia and the Expert

An expert who testifies about a nurse midwife’s care must meet the statute’s same-profession or supervision requirement, whatever the expert’s experience. Hankla v. Postell, 293 Ga. 692 (2013), was a shoulder dystocia case. The mother sued a certified nurse midwife and the midwife’s practice, alleging that the midwife breached the standard of care in handling the complication and that as a result the child sustained irreversible nerve and muscle damage that left the child permanently unable to move or use the right arm. The defense called a board-certified obstetrician, and the jury returned a defense verdict. The Court of Appeals reversed because the obstetrician was neither a member of the same profession as the midwife nor a physician who had supervised, taught, or instructed nurse midwives. The Supreme Court affirmed, holding that experience in active practice does not excuse an expert from meeting either the same-profession requirement of OCGA 24-7-702(c)(2)(C) or the supervision requirement of (c)(2)(D). The same qualification rules govern the expert affidavit that must accompany a complaint against a listed professional, including physicians and nurses (OCGA 24-7-702(e); OCGA 9-11-9.1(a), (g)).

Frequently Asked Questions

Can a baby’s arm be limp without nerve damage?
Yes. MedlinePlus explains that a brachial plexus injury “may be confused with a condition called pseudoparalysis,” seen “when the infant has a fracture of the clavicle (collarbone) and is not moving the arm because of pain, but there is no nerve damage.” In that case, “the child will begin to use the affected arm as the fracture heals.”

Does a C-section prevent a brachial plexus injury?
Not entirely. “Although a C-section reduces the risk of injury, it does not prevent it. A C-section also carries other risks.”

Does the deadline stop while a plaintiff is legally incompetent?
Not for medical malpractice claims. OCGA 9-3-73(b) applies the medical malpractice periods to a person who is legally incompetent because of intellectual disability or mental illness, and subsection (c)(1) bars an action brought more than five years after the negligent or wrongful act or omission. In Williams v. Regency Hospital Co., No. S25G0276 (Ga. Aug. 26, 2025), the Supreme Court of Georgia rejected an equal protection challenge to that rule, concluding that the plaintiff “has not met her burden of showing that OCGA § 9-3-73(b) is not rationally related to a legitimate legislative objective.” The opinion as posted carries a notice that it is subject to modification.

  • MedlinePlus (National Library of Medicine), “Brachial Plexus Injuries” (last updated Sept. 16, 2024); MedlinePlus Medical Encyclopedia, “Brachial plexus injury in newborns”
  • National Institute of Child Health and Human Development, “About Cerebral Palsy,” “What causes cerebral palsy?” and “How is cerebral palsy diagnosed?” (last reviewed May 11, 2021)
  • OCGA 9-3-73(b), (c)
  • OCGA 51-1-29.5(a), (c); Nguyen v. Southwestern Emergency Physicians, P.C., 298 Ga. 75 (2015)
  • Hankla v. Postell, 293 Ga. 692 (2013); OCGA 24-7-702(c), (e); OCGA 9-11-9.1(a), (g)
  • Williams v. Regency Hospital Co., No. S25G0276 (Ga. Aug. 26, 2025)

Disclaimer

This article provides general information about birth injury claims under Georgia law. It is not legal or medical advice and does not create an attorney-client relationship. The medical descriptions come from general health pages and do not describe any individual child’s condition or its cause. Deadlines for a child’s claim depend on the child’s age when the negligent act occurred, and the standard of proof depends on the care involved. A family whose child was injured at birth should consult a licensed Georgia attorney promptly about the particular situation.

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