Our experience is that an Erbs palsy case is kind of hard to lose.  Most are settled, and the few that are not, generally have a good defense.  Here is a midwest juror’s take on a lost Erbs palsy case.

"The first notice got lost, so when I got the warning noting my failure to report to jury duty three months ago, I quickly called and rescheduled to report on Feb. 5. "A day off. Yeah!" I thought.
Lucky me, I had a low number. After being picked and kicked off the jury for a rape trial, I was called up again a second time for a malpractice lawsuit. I had to sit for two hours that day, and one hour the next before the entire 14-member jury was completed. It seemed so many people had an excuse. Who knows whether they were legitimate or not.

For nine days, the 14 of us, eight men and six women of all ages and walks of life, sat listening to opposing viewpoints. It was like I was back in biology class. I took notes to remember the key points of each witness.

Several OB/GYN doctors, a neurologist and an orthopedic surgeon taught us all about the techniques to deliver a child with a shoulder dystocia, and treatment of brachial plexus (Erb’s palsy) injuries.

Basically, two physicians were accused of using inappropriate procedures to deliver a child after he was delivered to the head and got stuck. Three others were being sued for failure to conduct a last-minute ultrasound to determine birth weight and offer the woman a C-section since, the plaintiff’s attorney argued, there were signs that she would deliver a large baby – he was 10 pounds, 6 ounces at birth – and since she had other risk factors for dystocia.

The methods and procedures were drilled into our heads, over and over again. The standard of care expected of doctors delivering a child in 1998 were drilled into our heads. We saw diagrams, were given demonstrations, and heard testimony from experts paid $5,000 a day to testify.

It was dry, technical stuff but a bit interesting. The Worcester Superior courtroom was cold, and steaming hot in our waiting room. At times, bored from hearing the same thing, I stared at the ceiling, counted the molding, and glanced at the portraits of judges on the walls.

The trial had its emotional parts, like when the mother, in the last stages of pregnancy with her third child, took the stand. The woman, a native of Ghana, seemed to have a hard time understanding some questions.

Something told me she didn’t like being in court. She told us how she has to brush her son’s teeth, tie his shoes, and feed him. She told us how her boy, now 8 and with limited use of his right arm, is often teased by schoolmates. She said since he was born, she could not hold a job since she had to spend so much time caring for him.

Early into her testimony, she closed her eyes, started sniffing and broke down in tears. It was real. I had to look away. I had to try my best to block out the emotions, to not let it cloud my opinion.

The medical records, common sense, my experiences raising a child with limited use of one hand, the fact that the woman was not diabetic and other inconsistencies in the case were the keys that persuaded me to side with the entire jury. In less than 20 minutes of deliberation, we decided that the five doctors were innocent of negligence.

I felt good that we did the right thing, and bad that one side had to lose, that the plaintiffs left the court probably feeling they were wronged once again. I agreed with one juror who wondered whether the now divorced couple’s situation would have turned out differently if they were wealthier, and could have afforded a private doctor.

As a juror, I didn’t see this as one side telling the truth and the other a lie, but figured it was all about perception. Two people could honestly look at the same event and disagree as to what happened. That’s what I learned during jury duty.

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Andrew Lavoott Bluestone

Andrew Lavoott Bluestone has been an attorney for 40 years, with a career that spans criminal prosecution, civil litigation and appellate litigation. Mr. Bluestone became an Assistant District Attorney in Kings County in 1978, entered private practice in 1984 and in 1989 opened…

Andrew Lavoott Bluestone has been an attorney for 40 years, with a career that spans criminal prosecution, civil litigation and appellate litigation. Mr. Bluestone became an Assistant District Attorney in Kings County in 1978, entered private practice in 1984 and in 1989 opened his private law office and took his first legal malpractice case.

Since 1989, Bluestone has become a leader in the New York Plaintiff’s Legal Malpractice bar, handling a wide array of plaintiff’s legal malpractice cases arising from catastrophic personal injury, contracts, patents, commercial litigation, securities, matrimonial and custody issues, medical malpractice, insurance, product liability, real estate, landlord-tenant, foreclosures and has defended attorneys in a limited number of legal malpractice cases.

Bluestone also took an academic role in field, publishing the New York Attorney Malpractice Report from 2002-2004.  He started the “New York Attorney Malpractice Blog” in 2004, where he has published more than 4500 entries.

Mr. Bluestone has written 38 scholarly peer-reviewed articles concerning legal malpractice, many in the Outside Counsel column of the New York Law Journal. He has appeared as an Expert witness in multiple legal malpractice litigations.

Mr. Bluestone is an adjunct professor of law at St. John’s University College of Law, teaching Legal Malpractice.  Mr. Bluestone has argued legal malpractice cases in the Second Circuit, in the New York State Court of Appeals, each of the four New York Appellate Divisions, in all four of  the U.S. District Courts of New York and in Supreme Courts all over the state.  He has also been admitted pro haec vice in the states of Connecticut, New Jersey and Florida and was formally admitted to the US District Court of Connecticut and to its Bankruptcy Court all for legal malpractice matters. He has been retained by U.S. Trustees in legal malpractice cases from Bankruptcy Courts, and has represented municipalities, insurance companies, hedge funds, communications companies and international manufacturing firms. Mr. Bluestone regularly lectures in CLEs on legal malpractice.

Based upon his professional experience Bluestone was named a Diplomate and was Board Certified by the American Board of Professional Liability Attorneys in 2008 in Legal Malpractice. He remains Board Certified.  He was admitted to The Best Lawyers in America from 2012-2019.  He has been featured in Who’s Who in Law since 1993.

In the last years, Mr. Bluestone has been featured for two particularly noteworthy legal malpractice cases.  The first was a settlement of an $11.9 million dollar default legal malpractice case of Yeo v. Kasowitz, Benson, Torres & Friedman which was reported in the NYLJ on August 15, 2016. Most recently, Mr. Bluestone obtained a rare plaintiff’s verdict in a legal malpractice case on behalf of the City of White Plains v. Joseph Maria, reported in the NYLJ on February 14, 2017. It was the sole legal malpractice jury verdict in the State of New York for 2017.

Bluestone has been at the forefront of the development of legal malpractice principles and has contributed case law decisions, writing and lecturing which have been recognized by his peers.  He is regularly mentioned in academic writing, and his past cases are often cited in current legal malpractice decisions. He is recognized for his ample writings on Judiciary Law § 487, a 850 year old statute deriving from England which relates to attorney deceit.