Daryl Zaslow’s Notable Verdicts & Settlements
Daryl L. Zaslow Settles Tracy Morgan’s mentor’s “Jimmy Mack” wrongful death case, involving the comedians’ nationally publicized case against Walmart
Daryl L. Zaslow of Eichen Crutchlow Zaslow, LLP (Edison, Red Bank and Toms River), obtained a settlement on behalf of The Estate James McNair, the 62-year-old comedian who was killed when a tractor trailer owned by Walmart crashed into the van in which Mr. McNair, his long-time friend Tracy Morgan, and others were passengers. The accident occurred on June 14, 2014 on the New Jersey Turnpike. Although several of the passengers sustained injuries in the accident, Mr. McNair was the only fatality.
Mr. McNair left two adult children, Jamel and Denita McNair, as his beneficiaries. Although litigation could have been filed in at least 4 different states, the family chose Daryl L. Zaslow of Eichen Crutchlow Zaslow, LLP to represent them. Zaslow retained accident reconstructionists, trucking experts, a pathologist and a prominent accountant in the entertainment industry as experts. The accident has garnished significant media attention and brought focus to the dangers of fatigued driving.
After months of negotiations Walmart and the McNairs reached a settlement on the eve of when Mr. Zaslow was formally filing suit. Although the settlement received national attention in the media, technically the terms of the settlement require that the amount of the settlement remain confidential. Watch Entertainment Tonight Episode Regarding This Settlement
$21,000,000 Total Value of Recovery in Wrongful Death Failure to Diagnose and Treat Anaphylaxis/Allergic Reaction Case
Daryl L. Zaslow of Eichen Crutchlow Zaslow, LLP (Edison, Red Bank and Toms River), obtained a $12,000,000 settlement on behalf of the Estate of a 35 year old man who died on January 1, 2017 after being admitted to his local hospital’s Emergency Department for a severe allergic reaction. A portion of the settlement is being used to purchase annuities which bring the projected total value of the recovery over $21,000,000. At the time of his death, Plaintiff left surviving a wife and 2 young children.
The Plaintiff was a 35 year old man when he presented to the Emergency Department on January 1, 2017. Although he had never previously had an allergic reaction, he complained that he felt he was having an allergic reaction to his wife’s perfume and that he felt like his throat was closing. He also complained of having hives earlier in the day. Vital signs included a normal temperature, heart rate 108 beats/min, respiratory rate 20 breaths/min, blood pressure 142/107, and oxygen saturation on room air of 94%. He was noted to be 343 pounds. He was triaged as being unstable, with an ESI level of 2 and he was admitted to the Emergency Department under the care a defendant physician who was board certified in emergency medicine. There were also 2 defendant nurses involved in Plaintiff’s care in the Emergency Department.
On exam, the emergency medicine physician noted moderate distress and a markedly swollen edematous hard palate and uvula. The nurses documented that the patient was in sinus tachycardia, had full motion of his neck, and had throat redness. He was alert, had clear speech, and was communicating appropriately with no neurological symptoms. However, Mr. Zaslow’s client also had shortness of breath, shortness of breath at rest, and unlabored respirations. The defendant physician ordered Diphenhydramine (Benadryl), Famotidine (Pepcid) and Dexamethasone (Decadron). The defendant maintained during discovery that because the patient was not hypotensive or tachycardic, and because he was not in respiratory distress, he believed the patient was suffering from bradykinin-mediated angioedema. He further maintained that because epinephrine will not help a patient suffering from bradykinin-mediated angioedema and epinephrine could cause morbidity in obese patients like this patient, he chose not to order or administer epinephrine.
At 5:15 pm the patient complained of worsening difficulty breathing and he was noted to have significant respiratory distress and decreasing oxygen saturation. Anesthesia and surgery were called stat and preparations were made for intubation. Anesthesia arrived within a few minutes and noted the patient to be cyanotic and hypoxic with sats in the 40-60% range despite attempts at bag-valve mask ventilation. Despite repeated attempts, anesthesia could not successfully intubate the patient due to his swollen airway and large neck/body habitus. A Defendant resident from Surgery arrived and made two unsuccessful attempts to place a surgical airway. When these attempts at a surgical airway failed the resident called for surgical attending who arrived approximately 10 minutes later. The patient was then brought to the operating room for an attempt at a surgical airway. When the patient arrived in the operating room he was hypoxic and cyanotic. As the attending surgeon performed a cricothyrotomy the patient suffered a cardiac arrest. He could not be resuscitated and was pronounced dead.
Plaintiffs’ emergency medicine experts maintained that the emergency physician failed to timely diagnose acute anaphylaxis and that he failed to administer or order epinephrine, which they maintained is the most important first line treatment of acute anaphylaxis. Mr. Zaslow and the experts further maintained that the defendant did not properly anticipate and prepare for intubation and waited too long before deciding to intubate. Mr. Zaslow stressed intubation in this setting - with upper airway swelling, shortness of breath and an obese patient - is exceedingly difficult and high risk and must be timely ordered before the patient becomes hypoxic, cyanotic and in severe distress.
Plaintiffs nursing experts opined that the nurses deviated from the accepted standards of care by failing to immediately make they physician aware that she noted that the patient was experiencing shortness of breath. Mr. Zaslow and his experts further maintained that the nurses should have urged the emergency physician to administer epinephrine and if he refused they were required to circumvent physician’s authority by executing the chain of command. Finally, Plaintiffs’ nursing experts maintained that these nurses should have anticipated the need to intubate and, therefore, should have ensured all the medical equipment was available even before any physician ordered or requested the equipment.
Plaintiffs’ experts opined that the third year surgical resident had never performed an emergent cricothyrotomy and lacked the experience that this situation called for. They asserted he deviated from the standards of care by attempting an emergent cricothyrotomy by using an improper technique. By doing so he wasted precious minutes while the patient was becoming more hypoxemic and at greater risk for permanent brain death and cardiac arrest. Mr. Zaslow and his experts maintained that the resident should have called for an attending surgeon immediately upon seeing the situation in the emergency room. Instead he caused at least a 10 minute delay before the attending surgeon arrived by first attempting 2 unsuccessful attempts at a surgical airway before calling for the attending surgeon.
The defense experts opined that because the Plaintiff was not hypotensive or tachycardic, and because he was not in respiratory distress, the emergency physician was correct in believing that the patient was not suffering from a severe allergic reaction. Instead, the defense experts maintained that the patient was suffering from bradykinin-mediated angioedema and because epinephrine will not help a patient suffering from bradykinin-mediated angioedema, the decision not to order or administer this medication was appropriate.
The defense experts on behalf of the defendant nurses and hospital maintained that the care and treatment of the patient was being handled by a board certified emergency physician. They further stressed that there was never an order for epinephrine and nurses are not permitted to administer epinephrine without an order to do so. Finally, they asserted they were at all times actively caring for this patient and following the management and orders of the physicians.
$14,000,000 Total Value of Recovery in Negligent Security Case Resulting in Stabbing Death after Apartment Robbery
Reyes v. PHCH, et. al.
After 5 days of picking a jury before the Honorable Charles Powers, J.S.C., Daryl L. Zaslow of Eichen Crutchlow Zaslow, LLP (Edison, Red Bank and Toms River), obtained a $7.8 million settlement on behalf of The Estate of a 29 year old wife and mother who was murdered and her 7 month old son who was stabbed during the attack on his mother. A portion of the settlement is being used to purchase annuities, which will result in total payments to the Plaintiffs of at least $11,552,730 making the total value of the settlement over $14,323,000.00
Jacqueline Reyes was brutally stabbed to death during the morning of December 8, 2009. The murder occurred between 8:30-9:00 am in her apartment unit located within the Paulus Hook Towers Apartment complex in Jersey City, New Jersey. Martey Williams, a Newark resident committed the attacks during a robbery in which he stole approximately $7,000 in cash from the apartment. Williams pled guilty to the attacks and was sentenced to 40 years in prison for these crimes.
In December of 2008 Paulus Hook Towers was owned by Defendant PHCHC and the building was managed by a Professional Management Company. The Defendant Management Company hired The Security Company for the purpose of providing a uniformed security guard, weekdays from 4 pm-8 am. Plaintiffs alleged that Defendants were negligent in failing to have a uniformed security guard on the premises 24 hours a day. Defendants maintained the security at the premises was reasonable based on the crime statistics in the area under the standards set forth in Clohesy v. Food Circus, 149 N.J. 496 (1997). They also argued that because Williams had targeted the Reyes apartment based on the large amount of cash in the apartment, this crime could not have been prevented by the Defendants’ actions. The Defendants also named Williams as a Third-Party Defendant.
Jacqueline Reyes sustained 34 stab wounds to her face, neck, torso and arms. She died of a perforation of the right internal jugular vein. The infant Plaintiff sustained 8 stab wounds to his abdomen including one that perforated his lung. He developed respiratory distress and spent 2 months in the hospital recovering. Plaintiffs alleged that as a result of the injuries he sustained and the prolonged intubation he required following the attack the infant has developmental delays, particularly in expressive speech.
Mr. Reyes, who found his wife and son on the floor of their apartment building when he returned home for lunch, also had claims for negligent infliction of emotional distress damages under Portee v. Jaffee, 84 N.J. (1980) and its progeny that survived Defendants’ motions to dismiss.
Prior to reaching the settlement, Mr. Zaslow was assisted at the trial by his partner. The terms of the settlement, which were approved by The Honorable Charles Powers, J.S.C. on June 6, 2014.
$10,215,715 Million Projected Total Recovery in Birth Injury Case
Daryl L. Zaslow of Eichen Crutchlow Zaslow, LLP (Edison, Red Bank and Toms River), obtained a $5.0 million settlement on behalf of a six year old girl with hypoxic ischemic encephalopathy and cerebral palsy. A portion of the settlement is being used to purchase an annuity which make the projected total value of the settlement $10,215,715.
The child’s mother presented to Mountainside Hospital on August 26, 2013 at 9:30 am under the care of the Defendant obstetrician for an induction of labor. Although the fetal heart rate tracings and contractions were originally reassuring, Mr. Zaslow and his experts maintained that by 3 p.m. the uterine contractions were occurring every 1-2 minutes. Uterine contractions occurring at a rate greater than 5 in a 10 minute segment is known as uterine hyperstimulation or tachysystole, which should be avoided or treated as it can have a detrimental effect of placental perfusion and oxygenation to the fetus by not allowing sufficient re-oxygenation of the fetus between uterine contractions. Prolonged tachysystole has been shown to have a cumulative negative effect on fetal oxygenation status and can lead to depletion of fetal reserves necessary to protect the fetus from harm during the course of labor. Mr. Zaslow maintained that uterine tachysystole continues to be present throughout the remainder of the mother’s labor.
By 9 pm there were episodes of fetal tachycardia, with decreased variability and late decelerations. Plaintiffs’ experts maintained that over the course of several hours, the Defendant Obstetrician failed to appreciate evidence of a hostile uterine environment and fetal distress on the electronic fetal monitoring which should have prompted him to call for an emergency cesarean section. Instead, the plaintiff was not born until 12:54 a.m. the following morning. Plaintiffs’ experts opined that the delay in calling for an emergency cesarean section resulted in the infant sustaining an acute asphyxic event in the minutes before her birth which left her with significant brain damage.
The Plaintiffs’ experts were also critical of the labor and delivery nurses for not having appreciated the signs of tachysystole and fetal distress, and for not having invoked the hospital’s “chain of command” policy. Plaintiffs claimed that the Nurses should have exercised the "chain of command" and circumvented the Defendant Obstetrician’s authority as the attending physician when the obstetrician failed to appreciate or react to the signs of fetal distress.
$8,225,000 Verdict in Wrongful Birth/Down Syndrome Trial
After more than 4 weeks of trial Daryl L. Zaslow obtained an $8,225,000 verdict on behalf of a 4 year old boy with Down syndrome and his parents. Mr. Zaslow argued that due to the mother’s advanced maternal age of 42 years she was at an increased risk of having a child with Down syndrome and required a specialized prenatal screening test called a targeted ultrasound, which is performed during 16-18 weeks of gestation. A targeted ultrasound focuses, or targets, the fetal anatomical markers known to be associated with Down Syndrome. One of the Defendants in the suit was Plaintiff’s obstetrician who did not order a targeted ultrasound, but rather, sent the mother for a standard obstetrical ultrasound. Unlike the targeted ultrasound, a standard obstetrical ultrasound is general prenatal screening test performed on pregnant patients who are not already identified as high risk and while it may detect the presence of markers for birth defects, its primary purpose is to confirm fetal growth and gestational age.
Although the standard obstetrical ultrasound was interpreted as normal by the defendant radiologist Plaintiff’s expert maintained that the ultrasound was misinterpreted by the radiologist and in fact showed a thickened nuchal fold which is a major marker or sign of Down syndrome. Mr. Zaslow argued that this finding necessitated that the mother be sent for further prenatal screening tests including a targeted ultrasound and ultimately an amniocentesis. Had an amniocentesis been performed it would have diagnosed Down syndrome and plaintiff’s mother would have terminated the pregnancy, thereby avoiding the extraordinary costs and mental anguish associated with raising and caring for a person with Down Syndrome.
Within moments of the plaintiff’s birth it was apparent that the infant had physical characteristics of Down syndrome or Trisomy 21. Chromosomal tests confirmed the diagnosis which results in mental retardation, facial and other physical stigmas and a shortened life expectancy.
$7.72 Million Recovery on Behalf of an Attorney Involved in a Motor Vehicle Accident
Daryl L. Zaslow of Eichen Crutchlow Zaslow, LLP obtained a $7.72 Million recovery on behalf of a 52 year old attorney and his family. In July 2016, the Plaintiff was driving to work in traffic when his vehicle was struck from behind by another vehicle. There was virtually no property damage to either vehicle and after the accident Mr. Zaslow’s client went to work at his large corporate law firm without seeking immediate medical attention. Although he had not complained of cervical pain for nearly 15 years before the accident, in 1999 the client had problems with his neck and underwent a cervical fusion. The surgery performed in 1999 was a success as the attorney remained mostly asymptomatic until the happening of the accident at issue. Unfortunately, the accident of July 12, 2016 caused significant cervical complaints and Mr. Zaslow’s client has since undergone five (5) cervical surgeries due to the injuries he sustained in the July 12, 2016 accident.
Mr. Zaslow was honored to be chosen by the attorney to represent the attorney and his family. The prosecution of this case by Mr. Zaslow, however, was made difficult due to the fact that there was little to no property damage caused by the accident, the client had a prior history of significant cervical complaints that required major surgery years before the accident, the client did not seek immediate medical attention after the accident, and there were several different insurance companies involved with multiple layers of insurance. Despite these obstacles Mr. Zaslow, his client, and his client’s family were all very pleased with the ultimate recovery of $7.72 Million that Mr. Zaslow obtained for them. The settlement included a confidentiality agreement whereby the parties agreed not disclose the names of the parties or insurance companies involved.
$7,000,000 Settlement in Medical Malpractice Case Involving Fatal Brain Injury
Daryl L. Zaslow, Shareholder with Eichen Crutchlow Zaslow, LLP, secured a $7 million settlement from Jersey Shore University Medical Center/Hackensack Meridian Health on behalf of the estate of Raymond Daley. Mr. Daley has a sleeping disorder, and suffered a fatal brain injury after receiving opioid medication.
You can read more about the case here.
$6,850,000 Recovery in Wrongful Death Trucking Accident Case: Estate of Appio
Daryl L. Zaslow of Eichen Crutchlow Zaslow, LLP (Edison, Red Bank and Toms River) obtained a $6,850,000,000 settlement on behalf of the Estate of a 45-year-old man who was involved in a fatal trucking accident. On January 29, 2021, the Honorable Andrea I. Marshall, J.S.C. conducted a distribution hearing and entered an order approving the allocation of the wrongful death damages.
On September 6, 2017, at approximately 3:56 pm, Jason Appio was driving home from his job in Staten Island as a field technician for Verizon. He was in the right lane on State Highway 440 in Woodbridge when a Volvo tractor trailer owned by the Defendant Trucking Company crashed into the rear of Plaintiff’s vehicle. The Defendant Trucking Company had hired the Defendant Truck Driver as a CDL driver approximately 4.5 months before the accident. After the accident, toxicology report from the truck driver’s blood sample were positive for Xanax, Klonopin, and Clonazepam – all of which include common adverse side effects such as impaired judgment, drowsiness, fatigue, dizziness, unsteadiness, and disorientation. The investigating officers noted the truck driver was exhibiting all of these related side effects.
According to the multiple good Samaritans who tried to render to assistance to Mr. Appio, immediately after the accident he appeared deceased in his vehicle, and there was no evidence he was conscious after the accident. He was pronounced dead at the scene and his autopsy revealed a completed transected aorta, a fractured thoracic spine and blunt force injuries to the head and neck.
At the time of his death, Mr. Appio was a 45-year-old husband and father of three. According to Mr. Zaslow, the defense argued there was no evidence of any conscious pain and suffering and that Plaintiffs’ claims of economic loss were grossly inflated.
Mr. Zaslow continues to represent catastrophically injured victims of trucking accidents in New Jersey and across the country.
$6,740,000 Total Value of Recovery In 19-Year-Old Cerebral Palsy Case
Daryl L. Zaslow of Eichen Crutchlow Zaslow, LLP (Edison, Red Bank and Toms River), obtained a $4.15 million settlement on behalf of a 19-year-old who sustained hypoxic ischemic encephalopathy and cerebral palsy at birth. A portion of the settlement is being used to purchase annuities, which will result in total payments to the Plaintiffs of at least $4,977,275 making the total value of the settlement over $6,274,000.
The facts which gave rise to the lawsuit occurred nearly 20 years ago. The pregnant patient arrived at the Labor and Delivery Department of the Defendant Hospital on November 10, 1993 at approximately 12:30 p.m. Pursuant to the hospital’s policies and procedures, she was hooked up to fetal monitoring, however, no baseline fetal heart rate was recorded in the records. Although the parties vociferously dispute exactly what happened next, Plaintiffs testified that at approximately 1 p.m. they were told by a nurse they could leave the hospital and Defendants contend that patient removed herself from the fetal heart monitoring and essentially left the hospital against medical advice (“AMA”).
Plaintiffs returned to the Hospital at approximately 4 p.m. where they were seen by the Defendant obstetrician, who was Plaintiff’s treating obstetrician. Plaintiffs= experts maintained that over the course of the next several hours the defendant obstetrician failed to appreciate evidence of a hostile uterine environment and fetal distress on the electronic fetal monitoring which should have prompted him to order an emergency cesarean section earlier than he did. Tragically, a cesarean section was not performed until 6:06 p.m., at which time Plaintiff was born with significant problems. Plaintiffs= experts opined that the delay in calling for an emergency cesarean section resulted in the infant sustaining an acute asphyxic event in the minutes before his birth which left him with significant brain damage.
The Plaintiffs’ experts were also critical of the labor and delivery nurse who they allege was responsible for prematurely discharging Plaintiffs from the hospital when they first presented to the hospital at 12:30 p.m.
$6,500,000 Recovery in Wrongful Death Intubation of Patient With Pneumonia, Sepsis & ARDS
Daryl L. Zaslow of Eichen Crutchlow Zaslow, LLP (Edison, Red Bank and Toms River), obtained a $6,500,000 settlement on behalf of the Estate of a 53 year old woman who died on March 31, 2015, 3 days after being admitted to St. Peter’s University Hospital for pneumonia and sepsis. At the time of her death, Plaintiff left surviving a husband and three adult children. Although Plaintiffs settled part of the case against several defendants at a mediation before Maurice J. Gallipoli, A.J.S.C. (Ret.) in August 2019, the settlement against the remaining defendants was reached the week before the trial was to commence on December 2, 2019 and an Order approving the final allocation and distribution of funds was entered by the Honorable James Hyland, J.S.C on April 23, 2020.
Marie Horvath was a 53 year old woman, who had been sick for 5 days with fever, headache, cough and confusion, when she presented to St. Peter’s University Hospital (“St. Peter’s”) via ambulance on March 28, 2015. The medical records document a diagnosis which included multipolar pneumonia, hypoxia and septis. Based on the history, it was felt that she had a community-acquired pneumonia (CAP). Ms. Horvath subsequently developed progressive hypoxia and tachypnea with radiographic evidence of acute respiratory distress syndrome (ARDS). ARDS is a rapidly progressive disease occurring in critically ill patients. The main complication in ARDS is that fluid leaks into the lungs making breathing difficult or impossible.
Despite initially being treated with a 100 % non-rebreathing mask, she remained hypoxic and was switched to non-invasive positive pressure ventilation or BIPAP (100 %), which ostensibly provided only temporary improvement. On March 31, 2015 at 12 a.m. she had oxygen saturations in the low 80s and blood gas results from 12:48 a.m. revealed a P02 44, a PC02 of 38 and a pH of 7.48. At approximately 3:30 a.m. of March 31, a Defendant who was specialist in Critical Care and Pulmonology Medicine was covering the critical care unit, made the decision for an elective, non-emergent, intubation so that Mrs. Horvath could be mechanically ventilated. Consistent with routine practice at the hospital, the Defendant in-house Certified Registered Nurse Anesthetist or CRNA responded to the call for intubation and arrived in the ICU sometime around 4:20 am. Shortly after the endotracheal tube was placed by the CRNA Ms. Horvath developed bradycardia and cardiac arrest. A code was called, however, Ms. Horvath was not able to be resuscitated and expired at 5:10 a.m. on March 31, 2015.
Plaintiffs’ experts maintained that Critical Care specialist waited too long to order the intubation of Ms. Horvath and that the standard of care required intubation immediately after blood gas results were completed at12:48 a.m. According to Plaintiffs experts, Ms. Horvath had not improved with any of the antibiotics given, she had failed to stabilize with escalating treatment for hypoxemia, and she was clearly heading to physiological exhaustion and cardiopulmonary arrest. By delaying the order for intubation, Plaintiffs maintained Ms. Horvath’s physiologic reserve was more likely to deteriorate during the intubation process and thus she was more likely to sustain cardiac arrest.
Plaintiffs’ experts also opined that the CRNA deviated from the accepted standards of care by not properly inserting the endotracheal tube into the trachea, but rather, improperly placing the endotracheal tube in Ms. Horvath’s esophagus. After failing to properly position the endotracheal tube, Plaintiffs’ experts maintain the Defendant compounded that error by failing to timely appreciate signs that the endotracheal tube was not in the correct position. As per this issue, the CRNA testified that she believed the endotracheal tube was in the proper position because she observed condensation in the tube and that breath sounds were confirmed by 4 other medical care providers. Plaintiffs’ experts were critical of the CRNA for relying on these subjective factors and that she should have placed more emphasis on the fact that the end tidal C02 monitor did not appear to change colors after intubation.
The defense experts argued that this was an elective, not emergent intubation. In such circumstances, they maintained that the decision whether, and when, to electively intubate a patient is a “judgment call” and that when the specialist decided to intubate Ms. Horvath was lucid, conversant and fully capable of discussing the pro and cons of intubation. As such, they argued the Defendant’s decision to intubate was not delayed. With respect to causation, they opined that Ms. Horvath suffered from a non-responding pneumonia – whether community or healthcare associated – with persistent deterioration despite treatment with several different antibiotics. As such, they maintained she had severe ARDS and she had a high risk of morbidity and mortality.
The case was settled for $6.5 million.
Read the write-up by the New Jersey Law Journal here
$5,900,000 Recovery in Wrongful Death Surgical Positioning Case
Daryl Zaslow obtained a $5.9 million recovery on behalf of the Estate of a 67-year-old man who was the victim of multiple acts of negligence. The litigation originally arose out a motor vehicle accident. As a result of the accident, the Plaintiff sustained a partially torn rotator cuff. After conservative physical therapy failed, the plaintiff underwent what was anticipated to be a “routine” arthroscopic shoulder surgery. Tragically, during the perioperative or postoperative period the Plaintiff sustained an anoxic incident which left him brain damaged and unable to care for himself until he died several years after the accident.
The Plaintiffs filed the lawsuit against the driver who caused the motor vehicle accident as well as the 3 anesthesiologists who cared for him during the surgery. The medical records contained absolutely nothing unusual or inculpatory and the underlying medical issues involved in the medical malpractice aspect of the case were extraordinarily complex. In short, Plaintiff’s expert anesthesiologist opined that as a result of the positioning of Plaintiff during the surgery there was a reduction of the mean arterial blood pressure and cerebral profusion pressure which caused the anoxic injury. At the time the surgery was performed, this theory of medical negligence or medical complication had not even been recognized in the medical texts.
The case was litigated for nearly 10 years. During the course of litigation, the venue was changed, the case was stayed, and an insurance company become insolvent. The recovery of $5.9 represents the full limits of the insurance for the defendants.
$5,500,000 Verdict in Erb’s Palsy, Shoulder Dystocia Trial
Daryl L. Zaslow obtained a $5,516,150 verdict on behalf of a 5-year-old girl with a brachial plexus injury. The delivery was complicated by shoulder dystocia. Plaintiff’s experts maintained that the permanent injury was caused by the doctor applying excessive lateral traction on the baby’s head after her shoulder was impacted on her mother’s pubic bone. Plaintiff underwent surgery to improve her condition and her pediatric neurologist testified that although she made significant improvement following the surgery, she still has permanent limitations and he could not rule out the need for another surgery.
The Defendant maintained that she never applied excessive traction on the baby’s head and that after properly diagnosing the shoulder dystocia, she easily freed the impacted shoulder by applying 2 appropriate maneuvers, McRoberts and Suprapubic pressure. The defendant’s expert opined that there are several causes for brachial plexus injuries other than excessive traction by the doctor and that the defendant did not deviate from accepted standards of care.
After deliberating for nearly 3 hours, the Essex County jury awarded the plaintiff $5,158,910 for disability, impairment, loss of enjoyment of life, and pain and suffering, $225,000 for future lost wages and $132,240 for future medical expenses.
$5,000,000 Recovery in Failure to Diagnose Stroke Case
Silecchia v. The Ocean Eye Institute, et. al.
Daryl L. Zaslow of Eichen Crutchlow Zaslow, LLP (Edison, Red Bank and Toms River), obtained a $5.0 million settlement on behalf of a 50-year-old stroke victim and his soon to be ex-wife, with whom he has separated.
Paul Silecchia presented to the Ocean Eye Institute on June 25 and July 20, 2009, where he was seen by an optometrist. At both visits, Mr. Silecchia complained of recent headaches with monocular visual disturbances. The examinations by the defendant revealed no retinal pathology for the symptoms and his differential diagnosis included glaucoma and headache/migraine. At the second visit the optometrist recommended that Mr. Silecchia follow-up with his primary care provider if the headaches persisted and he was told return to The Ocean Eye Institute in one year. Neither the optometrist nor anyone from The Ocean Eye Institute expressed any urgency regarding Mr. Silecchia’s symptoms or his need for immediate treatment.
On July 20, 2009, Mr. Silecchia called his primary care physician, requesting prescriptions for several things, including an MRI of the head. Although Mr. Silecchia did not speak directly to his doctor Mr. Silecchia did speak to the staff and the phone message given to his physician from his staff stated that Mr. Silecchia had “headaches” and “left eye patches.” Notably, the phone message also informed the physician that according Mr. Silecchia had seen an optometrist and his “eyes were within normal limits.” With this information, the primary care physician wrote a prescription for an MRI of the head with and without contrast. The diagnosis written on the prescription states, “headaches and vision changes.” Dr. Lozowski did not call or ask to speak to Mr. Silecchia or to the optometrist regarding Mr. Silecchia’s situation and no one from his office expressed any urgency to Mr. Silecchia regarding the etiology of his symptoms or the need for immediate evaluation.
On August 3, 2009 Mr. Silecchia suffered a left hemisphere stroke involving the left middle cerebral artery distribution. The stroke resulted in permanent disability, including neurological deficits affecting the right side of his body, which have resulted in difficulties in walking and speaking. As a result of these deficits Mr. Silecchia never returned to work as a department manager at Pathmark.
Mr. Zaslow retained experts in ophthalmology, optometry, neurology, family medicine, internal medicine, life care planning and economics. With respect to the issue of liability, Zaslow and his experts maintained that the symptoms reported by Mr. Silecchia were secondary to amaurosis fugax, or ischemia to the ophthalmic artery from a carotid vascular lesion. Amaurosis fugax is a critical symptom that requires an emergent work up. Zaslow further maintained that an evaluation by a neurologist, primary care physician or one conducted in the emergency department at any time in the 6 weeks prior to his stroke would have prompted a carotid ultrasound which would have easily diagnosed his high grade carotid disease. Mr. Silecchia would have then undergone carotid revascularization or carotid endarterectomy and this stroke would have been prevented. Click here to read more about the case.
$4,650,000 Recovery in Wrongful Birth/Down Syndrome Case
After more than 5 weeks of trial Daryl L. Zaslow, Esq. of Eichen Crutchlow Zaslow, LLP (Edison, Red Bank and Toms River) obtained a $4,650,000 settlement on behalf of a 7-year-old boy with Down syndrome and his parents. Mr. Zaslow was assisted at trial by Thomas Rinaldi, Esq. of the firm. The settlement was reached as the case was being tried in Monmouth County before the Honorable David F. Bauman, P.J.S.C.
The Plaintiff Mother was sent by her regular obstetrician to the Defendant, a specialist in maternal fetal medicine, for first and second trimester prenatal screening tests due to a family history of birth defects. Although the first trimester screening test performed when Plaintiff was 12 weeks pregnant determined Plaintiff’s risk of having a baby with Down syndrome to be 1 in 1,102, Mr. Zaslow argued the Defendant deviated from the accepted standards of care in his interpretation of a second trimester targeted ultrasound performed when Plaintiff was 19 weeks pregnant which Mr. Zaslow argued showed the presence of two “soft markers” for Down syndrome. More specifically, Plaintiffs’ experts maintained that the Defendant failed to appreciate the presence of soft markers for Down syndrome referred to as a “sandal gap” and a “hypoplastic mid-phalanx of the fifth digit.” During the trial testimony of the Plaintiffs’ maternal fetal medicine expert, the jury was shown an ultrasound image the expert testified depicted an abnormal wide space between the first and second toe known as a sandal gap. The jury was also shown another ultrasound image the expert testified demonstrated an underdeveloped bone in the pinky known as a hypoplastic mid-phalanx of the fifth digit. Mr. Zaslow also introduced medical literature to support his argument that a sandal gap is found in 45% of babies born with Down syndrome and that 60% of fetuses with Down syndrome have a hypoplastic mid-phalanx of the fifth digit.
Mr. Zaslow argued that the Defendant needed to inform his client of the presence of both of the soft markers and of their statistical association to Down syndrome so that Plaintiff could make an informed decision whether to pursue an invasive amniocentesis. Had an amniocentesis been performed it would have diagnosed Down syndrome and plaintiff’s mother would have terminated the pregnancy, thereby avoiding the extraordinary costs and mental anguish associated with raising and caring for a person with Down syndrome.
In addition to filing suit against the maternal fetal medicine specialist, Mr. Zaslow also named as a defendant the sonographer who performed the targeted ultrasound. Although the defense conceded that the sonographer was not responsible for interpreting the ultrasound, Mr. Zaslow argued she should have brought the alleged abnormalities to the attention of the physician.
The Defendants argued that the ultrasound was entirely normal and did not demonstrate either the sandal gap or a hypoplastic mid-phalanx of the fifth digit. They also had several experts in maternal fetal medicine prepared to testify that a sandal gap and hypoplastic mid-phalanx of the fifth digit are not even considered reliable soft markers for Down syndrome and are therefore even if they are present, they should not be used to counsel patients about their risk for having a baby with Down syndrome.
$3,800,000 – $7,100,000 Recovery in Wrongful Birth, Cystic Fibrosis Case
Daryl L. Zaslow obtained a $2.0 million recovery on behalf of a 4-year-old boy with Cystic Fibrosis and his parents. A portion of the settlement is being used to purchase an annuity which will result in total payments to the child between $3.8 – $7.1 million, depending on how long the child lives. The settlement also allocates $468,000 to be split by the parents.
The child’s mother maintained that she was offered an elective screening test for Cystic Fibrosis carrier status at her first prenatal visit and she wanted to be screened. The mother testified that immediately after she left the obstetricians’ office with multiple requisition forms for laboratory tests, including the test for Cystic Fibrosis, which she took to them to a national laboratory. Notwithstanding this testimony, the laboratory maintained that they never received a request to screen the mother for Cystic Fibrosis and, since this is not a routine test, the mother’s blood was not screened for carrier status.
Although all of the mother’s prenatal blood tests were normal, the defendant physicians failed realize they had not received Cystic Fibrosis test results until after the child was born and diagnosed with this condition.
The gene causing Cystic Fibrosis was identified in 1989 and screening for Cystic Fibrosis has been offered to pregnant patients since the mid-1990s. Cystic Fibrosis is inherited in a recessive fashion meaning that both parents have to be carriers for a child to be born with the disorder. The initial screening test for carrier status is simply a blood test and if both parents are carriers, then the baby has a 25% chance of being born with the defect. After parents both test positive for carrier status, they may then choose to undergo an invasive amniocentesis or chronic villus sampling which will determine whether the baby has Cystic Fibrosis.
Mr. Zaslow argued that had the mother’s request to be screen been fulfilled, she would have learned she was a carrier, the father would have also undergone screening which would have been positive and the they would have elected to undergo an amniocentesis. Had an amniocentesis been performed it would have diagnosed Cystic Fibrosis and plaintiff’s mother would have terminated the pregnancy, thereby avoiding the mental anguish and extraordinary costs associated with raising and caring for a person with Cystic Fibrosis.
Cystic Fibrosis is a genetic disorder affecting multiple organ systems including the digestive system, pancreas, liver, intestines, sinuses and respiratory system. The defective gene resulting in Cystic Fibrosis causes the mucus to become perniciously thick and sticky. In terms of digestive problems this thick, sticky mucus blocks pancreatic ducts. As a result, digestive enzymes that are produced by the pancreas cannot reach the small intestine.
The respiratory system is the most serious problem for people with Cystic Fibrosis. The thick mucus builds up in the lungs and blocks the airways. This allows bacteria to grow in the lungs and results in serious lung infections, lung damage and ultimately respiratory failure. Today, the average life expectancy of people with Cystic Fibrosis is 37 however, just ten years ago, the life expectancy was 18 years of age.
The defendant physicians argued that the mother decided she did not want to be screened for carrier status and after the child was born advised the physicians she would not have terminated the pregnancy even if she was told the baby had Cystic Fibrosis. The laboratory also maintained they ran the tests that were ordered by the physicians.
$3,715,000 – $9,625,000 Total Value of Recovery in Cerebral Palsy Case
Daryl L. Zaslow obtained a multi-million settlement on behalf of a 6 year old boy with hypoxic ischemic encephalopathy and cerebral palsy. A portion of the settlement is being used to purchase an annuity which will make the total value of the settlement $3,715,000 – $9,625,000.
The child’s mother, who had recently come to the United States from Mexico, presented to CentraState Medical Center in labor on May 5, 2004. The defendant obstetrician ordered Pitocin to augment the labor and the delivery of the baby. Plaintiffs’ experts maintained that over the course of several hours, the obstetrician failed to appreciate evidence of a hostile uterine environment and fetal distress on the electronic fetal monitoring which should have prompted her physician to discontinue the Pitocin and call for an immediate emergency cesarean section earlier than she did. Plaintiffs’ experts opined that the delay in calling for an emergency cesarean section resulted in the infant sustaining an acute asphyxic event in the minutes before his birth which left him with significant brain damage.
The Plaintiffs’ experts were also critical of the labor and delivery nurse for not having appreciated the signs of fetal distress and for not having invoked the hospital’s “chain of command” policy. Plaintiffs claimed that the Nurse should have exercised the “chain of command” and circumvented the obstetrician’s authority as the attending physician when the obstetrician failed to appreciate or react to signs of fetal distress.
The multiple defense experts for opined that the obstetrician’s interpretation of the fetal heart monitoring was consistent with the ACOG guidelines and that the cesarean section was called at an appropriate time. A neonatology expert for the defense also argued that the Plaintiff’s neurological injuries were not caused by an acute asphyxic event, as the Plaintiffs’ experts maintained, but by prolonged exposure to maternal chorioamnionitis, an infection of the placenta. The nurse’s experts stressed that the obstetrician was constantly monitoring the patient throughout her labor and it was not the nurse’s decision whether to call for a cesarean section.
$2,650,000 Jury Verdict in Wrongful Death Motor Vehicle Case where Decedent was Turning Left from a Stop Sign
Daryl L. Zaslow obtained a $2,650,000 verdict on behalf of the Estate of a 42 year old man who died in a motor vehicle accident when he was making a left turn at an intersection with a stop sign in his direction. The defendant’s insurer offered only $200,000 to settle the case because the Plaintiff had the stop sign in his direction and was attempting to cross 3 lanes of traffic when the accident occurred, so Mr. Zaslow and his clients proceeded to trial.
Mr. Zaslow argued that the Defendant failed to appreciate he was driving his landscaping truck 14 miles over the speed limit and did not immediately slow down the truck when he first observed the Plaintiff’s car in his in his path of travel. The speed limit in that area of the accident was 45 mph and Zaslow presented an expert accident re-constructionist who determined the Defendant was driving 59.6 mph before he jammed on the brakes of the truck. Additionally, although the State Laboratory results were negative for Diphenhydramine (aka Benadryl) in the defendant’s blood, there was Diphenhydramine in the urinalysis and Zaslow presented expert testimony that the blood test results were unreliable since the blood specimen was taken nearly 5 hours after the accident. The expert toxicologist also testified that the defendant was likely suffering the adverse effects of Diphenhydramine/Benadryl at the time of the accident, which include drowsiness, fatigue and disturbed coordination and that these factors contributed to the accident.
The beneficiaries included a wife and three daughters. The jury awarded $2.2 million to the survivors for their future financial losses due to the death of the decedent, and $450,000 for past losses. It was also determined that the decedent died instantaneously. The $2.65 million award was to be reduced to $1,987,500 as the jury determined that the decedent bore 25% responsibility for the accident. Plaintiffs filed an offer of Judgment under R. 4:58 in the amount $1,000,000, and Plaintiffs were entitled to recover litigation costs, 8% interest and attorneys’ fees in addition to the $1,987,500 net verdict.
$2,500,000 for Medical Malpractice Case Involving Fatal Shoulder Surgery
Perricone v. Eltaki: The estate of a Secaucus man who died shortly after shoulder surgery received a $2.5 million settlement in a Hudson County suit on July 1. On April 19, 2012, Gerald Perricone, 57, had elective right shoulder surgery to repair a labrum tear at Bloomfield Surgi-Center, where he was administered anesthesia by anesthesiologist Dr. Kareem Eltaki.
Perricone allegedly died from cardiac distress when catecholamines, adrenaline-like substances that interact with the heart, circulated through his bloodstream. The substance was secreted from a pheochromocytoma, which is an abnormal mass, according to the suit.
The pheochromocytoma was first diagnosed upon autopsy, according to the estate’s lawyer, Daryl L. Zaslow of Eichen Crutchlow Zaslow in Edison.
While pheochromocytoma is usually diagnosed on autopsy, Perricone experienced tachycardia, or elevated heart rate, before the start of the surgery, which should have been addressed by Eltaki, according to Zaslow.
The suit claimed Eltaki deviated from the standard of care by failing to administer medication to Perricone, by failing to appreciate the seriousness of his condition after the surgery, by failing to have Perricone hospitalized promptly, and by delaying before calling emergency help, Zaslow said. The suit also claimed prompter emergency care would have led to Perricone’s survival. Perricone, 57, had a wife and three children.
According to Zaslow, the defense emphasized how rare it is to diagnose a pheochromocytoma before death, and noted that Perricone’s primary care physician and cardiologist both cleared him for surgery.
The case was settled before Hudson County Superior Court Judge Peter F. Bariso. Eltaki agreed to pay his $1 million policy limit, and Eltaki’s employer, Northern Valley Anesthesia Group, also agreed to pay it’s $1 million policy limit. Bloomfield Surgi-Center agreed to pay $500,000.
Eltaki and Northern Valley Anesthesia were represented by R. Scott Eichhorn of Marshall Dennehey Warner Coleman & Goggin in Roseland. Eichhorn could not be reached for comment.
Heather LaBombardi of Giblin Combs & Schwartz in Morristown, who defended Bloomfield Surgi-Center, declined to comment.
$2,500,000 Recovery in Wrongful Death Pheochromocytoma Case
Daryl L. Zaslow of Eichen Crutchlow Zaslow, LLP (Edison, Red Bank and Toms River), obtained a $2,500,000 settlement on behalf of the Estate of a 57-year-old man who died from a pheochromocytoma-related cardiac crisis during and immediately following an elective orthopedic shoulder surgery. At the time of his death on April 19, 2012, Plaintiff left surviving a wife and three adult children.
On April 19, 2012 Plaintiff Decedent underwent an elective right shoulder surgical repair of labrum tear under general anesthesia to be administered by the Defendant anesthesiologist. The procedure was performed at a free-standing surgical center. The surgery went smoothly from an orthopedic viewpoint, however, approximately three hours after the surgery began, Mr. Zaslow’s client was dead, succumbing to a pheochromocytoma-related cardiac crisis. A pheochromocytoma is an abnormal mass that secretes inappropriately large quantities of catecholamines, or adrenaline-like cardiac excitatory substances into the circulation. The Plaintiff Decedent’s pheochromocytoma was first diagnosed on autopsy. Although the vast majority of pheochromocytomas are found in the abdomen, they can be found anywhere along a system of primitive residual neuro-endocrine rests running along the spine from the base of the skull (glomus jugular) down to the top of the urinary bladder (organ of Zuckerkandl). If undiagnosed and untreated, they can prove lethal through the mechanism of severe hypertensive crisis, stroke, catecholamine-induced cardiomyopathy, and fatal cardiac rhythm disturbances. The medical literature states that approximately 90% of pheochromocytomas are first diagnosed on autopsy.
Mr. Zaslow and his experts maintained that his client developed wide QRS complex tachycardia before the start of surgery and that the Defendant anesthesiologist deviated from the standard of care when he proceeded with the surgery instead of further investigating the aberrant heart rate. They further maintained that the Defendant’s treatment of this patient’s wide (QRS) complex tachycardia during surgery deviated from the standard of care and that no clear attempt was made by the Defendant to address the wide complex tachycardia with proper medications or determine its etiology. Finally, Mr. Zaslow maintained that the anesthesiologist failed to appreciate the severity of the situation after the surgery was finished and while his patient was decompensating in the PACU. Despite problems with oxygenation and concomitant cyanosis, Plaintiffs maintained that the Defendant delayed in calling for an EMT and chose not to have his patient brought to the nearest hospital.
Mr. Zaslow and his experts contended that had this elective operation been suspended appropriately at the onset of the cardiac crisis, had appropriate medications been given, and had his client been transferred to a tertiary clinical facility in the appropriate time frame with proper stabilization and evaluation, followed by surgical extirpation (and cure) of the pheochromocytoma to a reasonable degree of medical certainty he would have experienced a normal recovery, with safe and successful shoulder repair later, and a normal long-term survival.
The Defendants stressed that approximately 90% of pheochromocytomas are first diagnosed on autopsy and that this statistic supports how difficult it is to diagnose them.
The matter settled for $2.5 million with the $1 million policy limits of the anesthesiologist being paid, the $1 million policy limits of the anesthesiologist’s employer being paid, and $500,000 being paid by the Surgery Center where the surgery was performed.
$2,500,000 Recovery in Case in Which a Pedestrian was Hit by a Bus
Daryl L. Zaslow of Eichen Crutchlow Zaslow, LLP (Edison, Red Bank and Toms River), obtained a $2,500,000,000 settlement on behalf of a 27 year old man who was struck by a bus and sustained a traumatic subdural hematoma, three closed rib fractures, a temporal bone fracture and a traumatic brain injury. The case was settled at mediation before The Honorable Mark B. Epstein, J.S.C. (Retired).
On April 16, 2015, Mr. Zaslow’s client was a 27-year old Korean speaking man who met his friends in New York City for dinner, drinks and entertainment. At approximately 5:50 am the next morning, after taking public transportation from New York to North Bergen, Mr. Seo was walking home and was in the crosswalk crossing Bergenline Avenue from west to east when a bus being driven by Defendant and travelling west on JFK Boulevard initiated a left turn heading south on Bergenline Avenue. The bus struck Mr. Seo in the crosswalk, pinning him to the underside, and dragging him approximately 100 feet.
The Plaintiff was taken via ambulance to Hackensack University Hospital where he was admitted for 2 weeks and where he was diagnosed with a traumatic subdural hematoma, three closed rib fractures, a temporal bone fracture and brain compression/mass effect with midline shift. Although his orthopedic injuries healed, Mr. Zaslow produced experts who opined that his client suffered a permanent traumatic brain injury that resulted in severely compromised cognitive function, memory problems and an inability to concentrate or focus.
At the time of the accident, the Plaintiff worked as a waiter but he was actively pursuing a career in the field of fashion as a graphic designer. Although the Plaintiff was employed briefly after the accident as a graphic designer, the Plaintiff could not maintain the position due to his brain injury and specifically his cognitive problems and inability to concentrate. Mr. Zaslow served a life care plan and vocational loss report that calculated the total economic loss to be approximately $1 million.
In terms of liability, the defense maintained that the Plaintiff was intoxicated at the time of the accident and that he started to walk into the crosswalk after the bus already began to make its left hand turn. As a result, the defense accident reconstructionist opined that the Plaintiff started to walk in front of the bus after the bus started its turn and the Plaintiff was in the bus driver’s blind spot after he entered the crosswalk. Although the Plaintiff’s blood alcohol content was not obtained after the accident the defense expert opined the Plaintiff had a blood alcohol content of .19% at the time of the accident.
In terms of damages, the defense argued there was no objective tests that memorialized a permanent brain injury and that all neuro-psychological testing indicated the Plaintiff suffered no cognitive dysfunction. They further argued that since the Plaintiff returned to same job he had prior to the accident there was no viable claim for lost wages.
$2,350,000 Recovery in Wrongful Death Aortic Dissection Case
Daryl L. Zaslow of Eichen Crutchlow Zaslow, LLP (Edison, Red Bank and Toms River), obtained a $2,350,000 settlement on behalf of the Estate of a 53 year old man who died from an aortic dissection. At the time of his death on October 18, 2013, Plaintiff left surviving a wife and two adult children. The case was scheduled for trial on March 11, 2019 and the settlement was reached on March 6, 2019 during a settlement conference before the Honorable Craig L. Wellerson, J.S.C.
Jonathan Rabkin was a 53 year old man when he presented to the Community Medical Center Emergency Department at 0109 on 10/18/2013 complaining of the sudden onset of upper abdominal pain radiating to the back. There was associated nausea and vomiting. He was seen by the Defendant attending emergency physician. After ordering labs and after a chest x-ray demonstrated an apparent wide mediastinum the emergency room physician ordered a chest CT angiogram (a CT with contrast) to rule out an aortic dissection, however, the physician subsequently canceled the contrast administration due to concerns regarding the elevated creatinine. As such, the CT scans of the chest and abdomen were ultimately performed at 0341 on 10/18 without IV contrast.
The Defendant radiologist, provided a preliminary interpretation of the CT scans at 0404 and a final read of these CT scans at 0501. This Defendant’s interpretation of the Chest CT noted a 5.2 cm fusiform ascending thoracic aortic aneurysm. Although the final report of the Chest CT prepared by the radiologist notes that the results were “relayed to the emergency room” the emergency room physician testified he was never told that the CT demonstrated a 5.2 aortic aneurysm and that the radiologist nformed him there “was no acute process” noted on the CT scan. As such, at 0407, Mr. Rabkin was admitted to the hospital for observation status and he was passed off to the on-duty hospitalist who was also a Defendant. It was not until 0903 that a contrast enhanced CT scan was performed of the chest revealing an extensive Type A aortic dissection with hemopericardium. At that time, arrangements were being made to emergently transfer Mr. Rabkin to Pennyslvania Hospital for the surgical repair of the aortic dissection, however, at 10:25 Mr. Rabkin became profoundly unstable and despite full resuscitative he could not be resuscitated. He was pronounced dead at 1148 on 10/18/13.
Mr. Zaslow and his experts maintained that a noncontrast CT scan cannot reliably diagnose or exclude the diagnosis of aortic dissection which is a life-threatening condition. As such, they argued that once the emergency physician ncluded an aortic dissection in his differential diagnosis it was incumbent on him to ensure that test was performed. Here, the Defendant initially ordered the correct test when he ordered the CT angiogram, however, his decision to cancel this and proceed instead with a noncontrast CT of chest was a decision that fell below the standard of care and caused unnecessary delay in diagnosing the aortic dissection.
Mr. Zaslow and his experts also maintained that the radiologist also deviated from accepted standards of radiology by not immediately contacting the emergency room physician and advising him of his finding of an ascending thoracic aneurysm and of the urgent need for a CT angiogram with contrast to exclude a dissection. As per these issues, Plaintiffs’ experts maintained that in a setting in which the ordering physician is considering an aortic dissection the finding of an aortic aneurysms is a critical finding that must be immediately communicated to the ordering physician and that the radiologist must also recommend the necessary study to ensure a timely diagnosis.
Plaintiffs’ experts were also critical of Defendant Hospitalist for contributing to the delay in not ordering the CT angiogram as soon as she became responsible for the patient upon his admission to the hospital at 0407.
Mr. Zaslow and his experts in thoracic surgery maintained that had a timely diagnosis been made, Mr. Rabkin could have easily been transferred from Community Medical Center to a hospital that was actually capable of performing the requisite surgical repair of acute ascending aortic dissections. As per this issue, Community Medical Center, which is part of the RWJ Barnabas Health System, is not a cardiac surgery center capable of performing emergent surgical repair of an aortic dissection. Jersey Shore University Medical Center is a cardiac surgery center fully capable of performing the surgery Mr. Rabkin required to save his life and was the closest such hospital to Community Medical Center.
The Defendants’ experts opined that even if Mr. Rabkin was diagnosed with an aortic dissection at approximately 0407, it would still have taken 6-10 hours to effectively transfer him to another institution that was capable of performing this surgery and therefore Mr. Rabkin would not have been saved.
$2,200,000 Urologic Medical Malpractice Matter
Daryl L. Zaslow, Esq. of Eichen Crutchlow Zaslow, LLP with offices in Edison, Toms River and Red Bank, New Jersey recently settled a urologic medical malpractice matter for $2.2 million on behalf of a 62-year-old man. Plaintiff presented to the Defendant at the referral of his primary care physician because of elevated PSA levels. Plaintiff maintains that, at the conclusion of the consultation, a biopsy had not been scheduled, but that the following day a staff member of Defendant’s practice called to advise of an opening in their schedule, which he agreed to take. It is alleged that Defendant failed to appreciate that no pre-operative instructions were given to Plaintiff such that pre-operative measures, including an enema and prophylactic antibiotics, were not followed. The day following the procedure Plaintiff was gravely ill, and presented to the Emergency Room where he was diagnosed with hypotension, septic shock as a result of bacteremia from prostatitis, respiratory failure, gangrene, and multi-organ failure. Plaintiff thereafter underwent bilateral below the knee amputations, below the elbow amputation of the left upper extremity and partial loss of right hand and four fingers. He now relies on prosthetics and a walker to ambulate. Settlement was reached prior to the exchange of written expert reports.
$2,000,000 Recovery in Wrongful Birth Down Syndrome Case
After 3 weeks of trial Daryl L. Zaslow obtained a $2,070,000 recovery on behalf of an 11-year-old boy with Down Syndrome. Within moments of the Plaintiff’s birth it was apparent that the infant had physical characteristics of Down syndrome or Trisomy 21. Chromosomal tests confirmed the diagnosis which results in mental retardation, facial and other physical stigmas and a shortened life expectancy. Plaintiff’s experts maintained that a prenatal fetal survey ultrasound done at 16 weeks of pregnancy showed a thickened nuchal fold which is a sign or marker that the fetus is at an increased risk of having Down syndrome. Plaintiff’s experts maintained that this finding necessitated that the mother be sent for further tests including a targeted ultrasound and ultimately an amniocentesis. Had an amniocentesis been performed it would have diagnosed Down syndrome and Plaintiff’s mother would have terminated the pregnancy, thereby avoiding the extraordinary costs of raising and caring for a person with Down Syndrome.
$1,900,000 Recovery in Cerebral Palsy Mid-Wife Case Involving a Home Birth
Daryl L. Zaslow of Eichen Crutchlow Zaslow, LLP (Edison, Red Bank and Toms River), obtained a $1.9 million settlement on behalf of a 5 year old boy with hypoxic ischemic encephalopathy and cerebral palsy. The case arose out of a planned home birth performed by a certified mid-wife. Plaintiffs’ experts maintained that the Defendant mid-wife failed to appreciate a prolonged second stage of labor and that the mother needed to be transferred the nearest hospital once her second stage of labor approached 2 hours. Long second stages of labor are associated with increased fetal and maternal morbidity and mortality because fetal reserves may become low from the stress of prolonged labor and pushing. Plaintiffs maintained that long second stages of labor may be indicative of impending problems and the Defendant mid-wife failed to appreciate or react to the length of the second stage which was at minimum 2 hours and 47 minutes.
Plaintiffs’ experts opined that the delay in transferring the mother to the nearest hospital where an emergency cesarean section would have been performed resulted in the infant sustaining an acute asphyxic event in the minutes before his birth which left him with significant brain damage.
The parents signed a detailed Home Birth Consent Form which advised them that certain emergencies may occur during a home birth and that the level and type of care they receive at a home birth would be different and less than they would receive if the delivery was performed at a hospital.
The multiple defense experts opined that the second stage of labor was not too long and did not necessitate that she be transferred to the nearest hospital. A neuro-radiologist expert for the defense also maintained that the child’s neurological insult occurred several days before the birth. Finally, the defendant’s obstetrical expert testified that because the home birth did not include the use of electronic fetal monitoring it was impossible to know whether the baby was in a hostile intra-uterine environment and required an emergency cesarean section. Click here to read more about the case.
$1,880,000 Recovery in Failure to Diagnose Stroke Case
Estate of Ramos v. Christ Hospital, et. al.
Daryl L. Zaslow of Eichen Crutchlow Zaslow, LLP (Edison, Red Bank and Toms River), obtained a $1.88 million settlement on behalf of the Estate of a 58-year-old stroke victim.
After having fallen in his kitchen and complaining of dizziness, Francisco Ramos presented to the Christ Hospital Emergency Department on February 13, 2011. The initial diagnosis was recorded as syncope, however, a CT done at that time showed evidence of infarctions in the left internal capsule and right cerebellar hypodensity which were correctly read as subacute stroke. He was admitted to the hospital where he was seen by Dr. Kazmi, the attending internist, Dr. Patel, a first-year resident working under the supervision of Dr. Kazmi, and Dr. Kapoor, a neurologist who was called in for a neurology consultation.
The neurological consultation was performed by Dr. Kapoor on February 15, 2011 and was reported as normal. From the time of admission through discharge on February 15, 2011, Mr. Ramos displayed no neurological findings. Additionally, telemetry performed indicated no arrhythmias or aberrant findings. Mr. Ramos was discharged from Christ Hospital following on February 15, 2011 with instructions to follow-up with his internist and neurologist in one week, however, on February 17, 2011 Mr. Ramos was admitted to Jersey City Medical Center having suffered an additional stroke. While at Jersey City Medical Center Mr. Ramos went on to sustain further strokes including a totally disabling stroke on February 20, 2011. The etiology of the strokes was never determined.
Mr. Zaslow retained experts in internal medicine, neurology, family medicine, cardiology, life care planning and economics. With respect to the issue of liability, Zaslow and his experts maintained that the defendant physicians who cared for Mr. Ramos at Christ Hospital prematurely and negligently discharged Mr. Ramos without determining the etiology of the subacute infarcts, failed to do a sufficient stroke work up, failed to obtain a cardiology consult and failed to perform a sufficient neurological consultation. Insofar as none of the physicians at Christ Hospital or Jersey City Medical Center were ever able to determine the etiology of the strokes, or prevent them, the issue of causation remained problematic.
Mr. Zaslow and his experts asserted that Mr. Ramos suffered several ischemic strokes prior to his admission on 2/13/2011, and because the CT scan of 13 February 2011 showed left internal capsule and right cerebellar strokes, the strong implication is that the source of emboli was heart or great vessels; these locations would not correspond to any local cerebral or carotid vessel distribution. These types of strokes are typically caused by what is known as a ‘shower of emboli,’ almost always central (cardiac or great vessel) in origin. Before discharging Mr. Ramos, the defendants at Christ Hospital failed to order the requisite tests to determine if the subacute strokes were coming from a cardiogenic source. As per this issue, a transthoracic echocardiography can sometimes identify a source, but the standard test is TEE (transesophageal echocardiography) because of its greater sensitivity based on better images that are unaffected by lung interference. CT angiography of the great vessels is also indicated to identify major thrombi or atherosclerotic plaques in the aorta that can frequently serve as embolic sources. Although both these tests were subsequently performed at Jersey City Medical Center and were normal, Plaintiffs maintained that the TEE was performed too late only after the cardiac emboli had traveled to Mr. Ramos’ brain – thus explaining why the emboli were not present in the heart.
Mr. Zaslow and his experts were critical that even when they discharged Mr. Ramos the defendants for failed to take the most basic measures to reduce the likelihood that Mr. Ramos would suffer an additional stroke. In fact, they even failed to recommend Mr. Ramos take aspirin.
Mr. Ramos was never able to recover from the multiple strokes he sustained at Jersey City Medical Center. He could not speak, walk or care for himself. He ultimately passed away on December 31, 2012. Mr. Ramos was unemployed when the care at issue occurred and his survivors included his adult son and sister, who helped care for him before he passed.
The terms of the settlement require the insurance carrier for Defendant Kazmi, who was responsible for the order discharging Mr. Ramos, to pay $1,500,000, Defendant Kapoor’s insurance carrier to pay $350,000 and UMDNJ/Rutgers School of Medicine, the employer for the Dr. Patel, to pay $30,000. Defendant Kazmi was represented by David C. Donohue, Esq. of
Farkas & Donohue, Florham Park. Defendant Kapoor was represented by William Brennan, Esq. of The Law Offices of William Brennan, LLP, Shrewsbury. Mike Lunga, Esq. of Florham Park represented UMDNJ/Rutgers School of Medicine and Dr. Patel.
$1,785,510 Total Value of Settlement in Shoulder Dystocia or Brachial Plexus Injury Case
Daryl L. Zaslow, of Eichen Crutchlow Zaslow, LLP (Edison, Red Bank and Toms River), obtained the defendant’s policy limits of $1,000,000 as a settlement on behalf of 6-year-old girl with a permanent brachial plexus injury she sustained during her birth. A portion of the settlement is being used to purchase an annuity which will result in total payments to the child of $1.4 million, making the total value of the recovery $1,785,510.
The Plaintiff was born on February 12, 2007 at Virtua Memorial Hospital and the delivering obstetrician recognized that the delivery was complicated by shoulder dystocia. Shoulder dystocia is an obstetrical emergency which occurs when a baby’s shoulder gets trapped behind the mother’s pubic bone during delivery. In these circumstances the physician is required to use certain maneuvers to free the impacted shoulder without causing injury. To prevent injury to the brachial plexus nerves running from the neck through the shoulder/arm, the standard of care requires that the delivering physician not exert excessive force in attempts to deliver the child.
In this delivery, Mr. Zaslow argued that the defendant applied excessive traction as she attempted to free the shoulder, resulting in a permanent brachial plexus injury, and, limited function of the shoulder, arm and hand known as Erb’s Palsy. Although the injured child has had surgery, the injury remains permanent.
$1.7 Million Recovery In Wrongful Birth/Down Syndrome Case
Daryl L. Zaslow, Esq. of Eichen Crutchlow Zaslow, LLP (Edison, Red Bank and Toms River) obtained a $1,700,000 settlement on behalf of a 4 year old boy with Down syndrome and his parents. The terms of the settlement were approved by the Honorable Mark P. Ciarrocca, P.J.Cv. at a Friendly Hearing held on May 21, 2019.
The infant Plaintiff’s mother, underwent a second trimester fetal anatomical survey ultrasound on September 24, 2014. The prenatal ultrasound was performed at Defendant Trinitas Regional Medical Center and was interpreted by a specialist in maternal fetal medicine. Mr. Zaslow argued Defendant deviated from the accepted standards of care in her interpretation of this prenatal ultrasound performed when Plaintiff was 22 weeks pregnant, which Mr. Zaslow argued showed the presence of a “soft marker” for Down syndrome. More specifically, Plaintiffs’ experts maintained that the Defendant failed to appreciate the presence of a soft marker for Down syndrome referred to as a “sandal gap”. The experts Zaslow retained opined that an ultrasound image from this study depicted an abnormal wide space between the first and second toe known as a sandal gap. Mr. Zaslow also relied on medical literature to support his argument that a sandal gap is found in 45% of babies born with Down syndrome.
Mr. Zaslow argued that Defendant needed to inform her patient of the presence of the soft marker and of its statistical association to Down syndrome so that she could make an informed decision whether to pursue an invasive amniocentesis. Had an amniocentesis been performed it would have diagnosed Down syndrome and Plaintiff’s mother would have terminated the pregnancy, thereby avoiding the extraordinary costs and mental anguish associated with raising and caring for a person with Down syndrome.
In addition to filing suit against Dr. Langer-Most, Mr. Zaslow also named as a defendant a certified midwife employed by Defendant Trinitas Regional Medical Center. The defendant mid-wife was involved in the Plaintiff’s prenatal care on September 25, 2014 and she was responsible for informing the patient of the results a Quad Screen Test. A Quad Screen test is a routine screening test performed during pregnancy in the second trimester to help classify a patient as either high-risk or low-risk for chromosomal abnormalities. Most laboratories report the results as “negative” if the risk of Down syndrome are less than 1 in 270. Here the mom’s risks were reported to be 1 in 291 and thus less than 1 in 270 and Defendant midwife testified that she informed the patient that the results were “normal”. Mr. Zaslow and the experts he retained argued that Defendant deviated from the accepted standards of care as she should not have advised the patient that the results were “normal” even though they laboratory reported the results as being “negative.” Plaintiffs maintained that to meet the standard of care, Defendant should have reviewed Ms. Solorzano’s age-related risk as well as her numeric test value risk, so that patient would be able to appreciate that although her risk was less than the laboratory cutoff of 1 in 270, the Quad results increased her risk by nearly 3.5 times above her age related risk of 1 in 1027. Mr. Zaslow and Plaintiffs experts argued that by doing so, this would have led to a further discussion about additional options for testing and her need for genetic counseling. By neglecting to meet this standard of care, the CNM prevented her patient from having the information to make an informed choice in whether to go forward with further testing and ultimately her pregnancy.
The experts for Defendant physician argued that the ultrasound was entirely normal and did not demonstrate a sandal gap. The defense also had several experts prepared to testify that a sandal gap is not even considered a reliable soft marker for Down syndrome and are therefore even if it was present it should not be used to counsel patients about their risk for having a baby with Down syndrome. Finally, the experts for the Defendant midwife opined that the laboratory correctly reported the Quad screen results as negative and the midwife did not deviate from the accepted standards by communicating the results as “normal.”
$1,500,000 Recovery in Failure to Diagnose Lung Cancer Case
Cole v. Mantinaos, et al.
Daryl L. Zaslow of Eichen Crutchlow Zaslow, LLP (Edison, Red Bank and Toms River), obtained a $1,500,000 settlement on behalf of a 60-year-old man who died from metastatic lung cancer. At the time of his death on October 20, 2012, Plaintiff left surviving a widow and an adult son.
Plaintiff, decedent underwent a chest x-ray on March 30, 2010 for respiratory complaints. At that time he was 58 years old. The x-ray was interpreted by a radiologist as being normal. After experiencing abdominal pain, Plaintiff underwent a chest and abdominal CT on February 3, 2012. This CT revealed a mass in the middle lobe of his right lung as well as multiple masses in his liver, that were later determined to be malignancies.
Plaintiffs’ experts maintained that the defendant radiologist deviated from the accepted standards of care in failing to detect and report an approximately 8 mm mass that they opined was present on the March 30, 2010 chest x-ray. Plaintiffs’ experts in pulmonary care and oncology further maintained that had the mass been timely reported in March of 2010, Plaintiff would have had a resectable malignancy in his lung, as there was no evidence of metastatic disease at that time. Mr. Zaslow further argued that although they would never know for sure, since timely diagnosis was not made, had the malignancy been reported in March of 2010, Plaintiff would have most likely been diagnosed with staging as low as T1 which carries an 80% chance of cure. Unfortunately, the 23-month delay in diagnosing the cancer allowed the cancer to metastasize such that it caused Mr. Cole’s death.
The defendants’ experts maintained that the March 30, 2010 was entirely normal and there was absolutely no evidence of an aberrant mass or nodule. They further maintained that the Plaintiff died from metastatic liver cancer, not lung cancer and that the mass found in Plaintiff’s lung in February 2012, was a metastatic secondary lesion that originated in Plaintiff’s liver.
Although the complaint was filed in Warren County, the matter was transferred to Somerset County for trial purposes. With an imminent trial date scheduled, the settlement was reached following several settlement conferences before the Honorable Thomas C. Miller, P.J.Cv.
$1,500,000 Recovery in Wrongful Death Cardiac Catheterization Case
Daryl L. Zaslow of Eichen Crutchlow Zaslow, LLP (Edison, Red Bank and Toms River), obtained a $1,500,000 settlement on behalf of the Estate of a 65-year-old woman who died from a delay in diagnosing and repairing a retroperitoneal hematoma sustained during a cardiac catheterization and percutaneous coronary intervention (PCI). At the time of her death on March 11, 2011, Plaintiff left surviving an adult son.
On 8 March 2011 Plaintiff was 65 years of age and had a history of hypertension and hyperlipidemia, was transferred to Morristown Memorial Hospital for cardiac catheterization and percutaneous coronary intervention (PCI) in the setting of an acute coronary syndrome reflected by chest discomfort at rest and ECG changes representing anterior wall myocardial ischemia. Defendant, an interventional cardiologist, performed PCI. Plaintiff’s experts maintained that Defendant departed from the standard of care by failing to appropriately recognize that Plaintiff was suffering from a large right retroperitoneal hematoma, by failing to institute appropriate medical therapy, by failing to perform (or a have an associate perform) a percutaneous catheter-based closure of the bleeding vascular site, and by failing to obtain timely surgery consultation when the condition of the Plaintiff worsened. As a result of these departures, Mr. Zaslow argued that his client steadily deteriorated, lapsed into shock with multi-organ system failure, suffered and unnecessarily died on 11 March 2011.
The Defendant maintained that hematoma was a risk of the procedure and the Defendant’s decision to wait for the bleed to tamponade was an exercise of medical judgment.
$1,350,000 Recovery in Cataract Surgery Resulting in Monocular Blindness Case
Daryl L. Zaslow of Eichen Crutchlow Zaslow, LLP (Edison, Red Bank and Toms River), obtained a $1,350,000 settlement on behalf of a 77-year-old woman who lost vision in her left eye following a cataract extraction performed on July 18, 2012.
On July 18, 2012, Mr. Zaslow’s client presented for cataract extraction with intraocular lens implant of the left eye to be performed by the Defendant ophthalmologist. Before the operation began the anesthesiologist for the procedure, who was also a Defendant, noted that the patient was having problems with coughing prior to the start of the surgery. Although both Defendant physicians observed the patient coughing prior to the inception of the procedure neither considered the degree of coughing to pose a risk to the patient. As such, the surgery was initiated, and the Operative Report notes the patient was coughing and that she was “repeatedly” asked to clear her throat.
After the lens capsule was opened, the patient began to cough uncontrollably. A nasal choroidal hemorrhage developed, and the remainder of the operation was aborted without the placement of an intraocular lens. Following her eye surgery, the Plaintiff developed retinal complications which Mr. Zaslow and Plaintiff’s experts argued were caused from the Defendants’ decision to proceed with this elective surgery on a patient who was demonstrating periods of uncontrollable coughing and concomitant movement prior to the inception of the procedure. As a result, despite multiple procedures by retinal specialists she lost sight in her left eye.
Mr. Zaslow served experts reports from an ophthalmologist and an anesthesiologist who opined the defendant ophthalmologist and defendant anesthesiologist both had an independent duty to suspend this elective procedure well before it was started.
The defense and their experts maintained that although the patient did demonstrate some mild coughing prior to the start of surgery, she was able to stop coughing before the surgery was started, so proceeding with the surgery was appropriate. They further maintained that the patient first developed “uncontrollable” coughing only after the capsulorrhexis had been formed, and at that point the procedure could not be stopped without significant risk to the patient.
$1,300,000 Recovery in Failure to Diagnose Large Bowel Obstruction Case
Daryl L. Zaslow of Eichen Crutchlow Zaslow, LLP (Edison, Red Bank and Toms River), obtained a $1,300,000,000 settlement on behalf of a 67-year-old woman who required a total colectomy with ileostomy as a result of an alleged failure to timely diagnose and treat a large bowel obstruction. The settlement was reached on December 21, 2018 during a settlement conference before the Honorable Craig L. Wellerson, J.S.C.
Mr. Zaslow’s client was 61 years old when she presented to the Emergency Department of Ocean Medical Center on August 23, 2013 complaining of constipation. She had a recent diagnosis of breast cancer and had underwent her first round of chemotherapy (Cytoxan/Taxotere) four days previously. The emergency physician noted that her bowel sounds were normal, and he ordered KUB study or plain abdominal x-rays which revealed a moderate amount of stool, no air fluid levels, and no evidence of mechanical obstruction. She was discharged home with a diagnosis of constipation and instructions to continue self-administer another Fleet Enema the following day if constipation continued.
The Plaintiff returned to the Ocean Medical Center Emergency Department via ambulance the next day, August 24, 2013, where she was seen by the Defendant an emergency medicine physician. At this time she was complaining of vomiting, abdominal pain and ongoing constipation. The pain was described as diffuse, constant, and moderate-severe. On physical examination, the abdomen was described as without distension. Bowel sounds were active and there was moderate tenderness to palpation was noted in all quadrants. The Defendant did not perform a rectal examination and his differential diagnosis included: “Bowel obstruction, irritable bowel syndrome, pancreatitis, and fecal impaction.” The emergency physician reviewed the KUB images from the day before, noting that there was no evidence of a mechanical bowel obstruction and he discharged the patient with instructions to follow up with her oncologist.
Mr. Zaslow and the Plaintiffs’ experts argued that the Defendant deviated from the accepted standard of care at the August 24, 2013 visit, which was her second in 24 hours, and which should have been a red flag to the Defendant. In this setting in which his differential diagnosis included bowel obstruction and fecal impaction Plaintiffs’ experts maintained that the Defendant was required under the standard of care to order a CT scan of the abdomen in order to exclude dangerous intra-abdominal pathology, including a bowel obstruction. Had this been performed on August 24, 2013, Plaintiffs maintained it would have revealed evidence of the colonic obstruction.
The patient returned by ambulance to the Emergency Department on August 26, 2013 complaining of vomiting, abdominal pain, constipation and weakness. On examination, she was described as “obviously ill” with mild abdominal distension and mild lower abdominal tenderness. A CT of the abdomen was ordered at this visit which was consistent with a large bowel obstruction. A surgical consultation was performed and confirmed the diagnosis of large bowel obstruction based on the CT scan and the Plaintiff underwent an emergency exploratory laparotomy. Findings at surgery included a complete large bowel obstruction due to a rectosigmoid stricture. The colon was described as “massively distended and dilated with venous engorgement as well as multiple serosal splits.” This required a total colectomy with ileostomy and Hartmann pouch of the rectum.
Mr. Zaslow and Plaintiffs’ experts maintained that had the Defendant ordered a CT of the abdomen when the Plaintiff returned to the emergency department on August 24, 2013, the results would have demonstrated a large bowel obstruction. This would have triggered a surgical consult before the colon was compromised. This would have led to a decompression of the colon before it was fully comprised, obviating the need for a total colectomy and permanent ileostomy. Had a CT scan been done at that time standard intervention could have been undertaken avoiding the extensive surgery she had and eliminating the need for a permanent colostomy and the prolonged post-operative course she sustained.
After several months of recuperation, Mr. Zaslow’s client returned to work. Although she is a candidate for reversal of the ileostomy, even if there was an attempt to close her ileostomy at this time, there would be risks of multiple complications including bleeding, infection, bowel or ureteral injuries, hernia formation, post-operative intestinal obstruction, and more. As such, at this time, she has no intention of undergoing a reversal of the ileostomy.
$1,250,000 Settlement for Failure to Report Abuse
Estate of Norris v. DYFS: A Monmouth County judge on Nov. 29 approved a $1.25 million settlement of a suit claiming the Division of Youth and Family Services’ mishandled response to reports of abuse led to a Jackson child’s death.
Kedar Norris, then 5, died on March 29, 2004, as the result of blunt force trauma to his abdomen that ruptured his intestines, says his estate’s lawyer, Daryl Zaslow, of Eichen Crutchlow Zaslow, LLP in Edison.
The fatal blows were inflicted by his mother’s boyfriend, Royce Berry, now her husband, who was convicted of reckless manslaughter and child endangerment and is still in prison. The mother, Natesha Smith, pleaded guilty to child endangerment but drew no jail term.
A Dec. 9, 2004, report by the state Office of Child Advocacy faulted DYFS for its handling of two reports it received about Berry physically abusing the boy, in November 2002 and May 2003. DYFS did not check child care records that would have disclosed an earlier concussion, failed to have Kedar interviewed by a sexual abuse expert after the 2003 report and created an in-home case plan that ignored Kedar’s claims of excessive punishment by Berry, the report said.
Zaslow says he deposed the report’s author, Dr. E. Susan Hodgson, and would have sought to use her testimony and the report at trial under the admission against interest exception to the hearsay rule, since she is a state employee.
The settlement was reached at a Sept. 13 conference with Superior Court Judge David Bauman and later approved by Judge Joseph Quinn. The money will be split 70-30 between Jeffrey and Kaleem Norris, the father and brother of Kedar.
Deputy Attorney General Paul Nieves defended DYFS. A spokesman for the Attorney General’s Office, Lee Moore, confirms the settlement.
$1,200,000 Recovery for Miscalculation of Due Date Causing Early Induced Labor Resulting in PVL
Daryl L. Zaslow, Esq. of Eichen Crutchlow Zaslow, LLP (Edison, Red Bank and Toms River) obtained a $1,200,000 settlement on behalf of an 11-year-old boy who was diagnosed with periventricular leukomalacia (“PVL”) at 5 years of age. A portion of the settlement is being used to purchase an annuity which will make the total value of the settlement $1,834,401.70. The settlement was reached during a settlement conference before the Honorable James Den Uyl, J.S.C., who approved the settlement at a friendly hearing conducted before His Honor on March 11, 2016.
On January 25, 2005, the Plaintiff’s mother was 32 years old when she presented to her obstetrical group for her first prenatal visit. At such time, she reported that she was uncertain whether her last menstrual period (“LMP”) was November 11, 2004 or November 16, 2004. Thereafter, the pregnant patient underwent three prenatal ultrasound examinations all of which were interpreted by her obstetrician the Defendant. Mr. Zaslow retained experts who opined the three ultrasounds supported a final estimated due date of August 25, 2005. The experts further opined that the Defendant deviated from the accepted standards of obstetrical care by erroneously determining the estimated due date to be on August 16, 2005 based on the uncertain LMP of November 11, 2005. According to Mr. Zaslow and his experts, because there was a 9-day difference between the estimated due date by LMP and the estimated due date by ultrasound, the ultrasound-derived estimated due date of August 25, 2005 should have been considered the correct due date.
The Defendant obstetrician induced labor on August 1, 2005. The medical records he prepared at such time indicated that the mother was 38 weeks pregnant and that the obstetrician induced labor was because the mother had severe complaints of Gastroesophageal reflux disease (“GERD”). Mr. Zaslow maintained that in reality, his client was only 36+4/7 weeks pregnant on August 1, 2005 based on her first trimester ultrasound, clinical history and the remaining two ultrasound examinations. By miscalculating the estimated date of delivery and inducing the delivery on August 1, 2005, the plaintiff’s experts opined that the defendant caused an iatrogenic preterm birth that increased the risk of the baby having short- and long-term morbidity including but not limited to respiratory problems after birth and long-term neuro-developmental problems.
Although the baby appeared healthy at birth, with excellent Apgars of 9/9/9, shortly after birth he developed respiratory distress. The child was slow to meet his developmental and neurological milestones during the first several years of life and several of his treating physicians and the child study team at school system believed he was autistic. When Mr. Zaslow’s client was 5, however, he underwent an MRI which was interpreted to show Periventricular leukomalacia or PVL. PVL is a type of brain damage that involves the periventricular white matter of the brain. Damage to the white matter results in the death and decay of injured cells, leaving empty areas in the brain called lateral ventricles, which fill with fluid (a condition called leukomalacia). Following the MRI, one of his treating physicians attributed his developmental delays in the area speech to be from the PVL.
Although PVL is usually associated with premature babies born prior to 34 weeks gestation, Mr. Zaslow and the experts he retained maintained that his client’s PVL and developmental delays in the area of speech were caused by his iatrogenic premature birth.
The Defense argued that the Defendant correctly determined the due date and that the birth was not premature. The Defense had several experts who opined there was no PVL and any problems the child had were caused by autism and had nothing to do with when he was delivered.
The Defendant Obstetrician settled for one million dollars, the amount of his insurance policy. Plaintiffs alleged the obstetrical office staff should have made the fact the mother was not certain what her LMP was more apparent in the medical records and/or otherwise ensured this fact was brought to the attention of obstetrician. As such, they contributed $200,000 to the settlement.
$1,000,000 Recovery in Wrongful Death Pulmonary Embolism Case
Harris v. Frankel, et al.
After more than 3 weeks of trial Daryl L. Zaslow, Esq. of Eichen Crutchlow Zaslow, LLP (Edison, Red Bank and Toms River) obtained a $1,000,000 settlement on behalf the Estate of a 45-year-old man who died from a pulmonary embolism 7 days after undergoing a bariatric surgery. Mr. Zaslow was assisted at trial by Thomas Rinaldi, Esq. of his firm. The settlement was reached for the Defendant’s policy limits as the jury was deliberating in a case tried in Bergen County before the Honorable John D. O’Dwyer, J.S.C.
Willie Harris was 45 years old when he presented to Holy Name Medical Center on April 3, 2013 for the laparoscopic repair of his lap-band and for the repair of a hernia, which was caused by the lap-band slipping. The lap-band was originally placed in 2004. Although the surgery was successful, 3 days later, as Mr. Harris was getting ready to be discharged, he developed atrial fibrillation and subsequent tests including a venous Doppler scan and CT Angiogram confirmed he had sustained a deep vein thrombosis and pulmonary emboli. Defendant Dr. Zev Frankel was a cardiologist brought in to help treat the deep vein thrombosis and pulmonary emboli. The Defendant treated Mr. Harris with therapeutic anticoagulation. Despite this treatment, Mr. Harris died from a massive pulmonary embolism on April 10, 2013 as he was attempting to leave the hospital.
Mr. Zaslow argued that that the Defendant deviated from the accepted standards of care by choosing not to call in a vascular surgeon to implant an inferior vena cava filter (“IVC filter”). An IVC filter is a small cone shaped device that is placed in the inferior vena cava, the largest vein in the human body, and is designed to act as a safety net by preventing large clots that break apart from a deep vein thrombosis from reaching the heart and lungs. Mr. Zaslow and the plaintiff’s experts also maintained that an IVC filter was required as the deep vein thrombosis Mr. Harris had was “free floating” and because his lungs were already vulnerable from the prior pulmonary emboli he sustained.
The Defendant’s experts maintained that the Defendant’s decision not to order an IVC filter was consistent with the controlling National CHEST Guidelines and the standard of care. They further maintained that using an IVC filter in this setting would have been a departure from the accepted standards of care and violated the controlling national standards and guidelines used by virtually every hospital in the country.
At the time of his death, Mr. Harris left surviving a 50-year-old wife and 2 sons, ages 16 and 13. Mr. Harris had been employed by New Jersey Transit and Plaintiff’s economic damages were between $974,000-1.6 million.
The Defendant was insured by Conventus Inter-Insurance Exchange under a policy with $1 million limits. Mr. Zaslow demanded the $1 million insurance policy limits of the Defendant, which were finally tendered at summations.
Dr. Frankel was represented at trial by Sean Buckley, Esq. of Buckley Theroux Kline & Petraske, LLC of Princeton.
$1,000,000 Settlement in Shoulder Dystocia/Brachial Plexus Injury Case
After a jury was empaneled before the Honorable Anthony Pugliese, J.S.C. Daryl L. Zaslow, of Eichen Crutchlow Zaslow, LLP (Edison, Red Bank and Toms River), obtained a settlement for the Defendant Obstetrician’s $1,000,000 policy limits on behalf of 11 year old girl with a permanent brachial plexus injury she sustained during her birth. A portion of the settlement is being used to purchase an annuity which will result in total payments to the child of $824,800.72. Judge Pugliese formally approved of the settlement and the allocation of the settlement at a Friendly Hearing conducted before His Honor on May 23, 2016.
Ildeanis Martinez was born on May 4, 2004 at Our Lady Lourdes Medical Center and the delivery was performed by the defendant obstetrician. The medical records prepared by the delivering physician indicated that there was a “terminal bradycardia” or a significant drop in the baby’s heart rate during the very end of the labor process and that the physician chose to use a vacuum to extract or deliver the baby, ostensibly in an effort to avoid asphyxia and brain damage. The baby needed to be resuscitated and was acidotic at birth, and she had Apgar scores of 2 at 1 minute, 2 at 5 minutes and 5 at 10 minutes. The infant Plaintiff was also not moving her right arm at birth.
Notably, neither the medical records prepared by the obstetrician or the nurses recorded that this delivery was complicated by shoulder dystocia. Additionally, during his deposition, the defendant insisted that the delivery was not complicated by shoulder dystocia. Mr. Zaslow and his experts maintained, however, that the delivering physician failed to recognize or record that the delivery was complicated by shoulder dystocia. In support of this argument, Mr. Zaslow pointed to the fact that 2 maneuvers typically used by obstetricians to resolve a shoulder dystocia were used during the delivery.
Shoulder dystocia is an obstetrical emergency which occurs when a baby’s shoulder gets trapped behind the mother’s pubic bone during delivery. In these circumstances the physician is required to use certain maneuvers to free the stuck shoulder without causing injury. To prevent injury to the brachial plexus nerves running from the neck through the shoulder/arm, the standard of care requires that the delivering physician not exert excessive force on the baby’s head in attempting to deliver the baby.
In this delivery, Mr. Zaslow argued that the defendant applied too much traction or pulling on the baby’s head as he attempted to free the shoulder, resulting in a permanent brachial plexus injury, and limited function of the shoulder, arm and hand known as Erb’s Palsy. The child had nerve surgery at 4 months of age and still has residual loss of motion and weakness in her right arm.
$1,000,000 Recovery in Wrongful Death Drowning Case
Daryl L. Zaslow represented the Estate of a 43-year-old man who drowned during a scuba diving lesson. The decedent was taking an open water scuba diving class to obtain his diving certification when he was separated from his partner and dive instructors. After the decedent was discovered and pulled from the water his diving equipment was subjected to extensive forensic investigation and testing and the results confirmed that the scuba equipment did not malfunction. An autopsy revealed only that the death was a result of drowning and there were no medical events such as a cardiac arrest or stroke that may have caused the tragedy. Although there were no witnesses to say exactly what happened to have caused the death, Mr. Zaslow retained a leading expert in scuba diving accidents who was critical of the diving instructors for losing sight of the decedent. The expert further opined that if the visibility was too poor to see all the diving students, it was incumbent on the diving instructors to cancel the lesson. Mr. Zaslow obtained the full insurance policy limits of $1,000,000 for the Estate.
$1,000,000 Settlement for 2-Year Old’s Death from Pneumococcal Meningitis
After 3 weeks of trial before the Honorable Darlene J. Pereksta, Mercer County, Daryl L. Zaslow, of Eichen Crutchlow Zaslow, LLP (Edison, Red Bank and Toms River), obtained a $1,000,000 settlement on behalf of the Estate of a 2-year-old boy who died of pneumococcal meningitis.
Vaughn Lujan was 2 years old when his father took him to see one of his pediatricians, Priya Stephen, MD on April 8, 2008. At that time, Plaintiffs maintain Vaughn’ symptoms included several days of fever between 103-104, vomiting and decreased activity. Plaintiffs also maintained that Vaughn was extraordinarily tired and could hardly keep his eyes open during the examination performed by Dr. Stephen. Dr. Stephen contended that Vaughn was fully immunized and although Vaughn was tired, he was otherwise alert and appropriate during her examination. Dr. Stephen diagnosed Vaughn as having a viral syndrome. Although Mr. Lujan maintained Dr. Stephen instructed him to bring Vaughn back in 48 hours if he still had a fever or had not improved, Dr. Stephen insisted she also instructed Mr. Lujan to bring Vaughn back in sooner if he got worse.
On April 9, 2008, Vaughn was more tired and less active. That evening Mr. Lujan spoke to Vaughn’s regular pediatrician, Dr. Sean Pierson. The content of this telephone conversation was vociferously disputed. Dr. Pierson maintained he instructed Mr. Lujan of warning signs that if present necessitated that Vaughn receive immediate medical care. Mr. Lujan did not recall any such instructions being given.
When Vaughn was seen by a different pediatrician on April 10, 2008 that pediatrician immediately suspected Vaughn had bacterial meningitis. That diagnosis was confirmed when Vaughn was admitted to Robert Wood Johnson University Hospital. Tragically by the time Vaughn arrived at the hospital he was completely unresponsive. Vaughn suffered a stroke on April 17 and died on April 19, 2008.
Plaintiffs alleged that on April 8, 2008, Defendant Stephen deviated from the accepted standards of care in failing to order follow-up care and by failing to properly communicate medical instructions for follow-up care to Plaintiffs. Plaintiffs further contended that Defendant Pierson deviated from the accepted standards of care in failing to advise Plaintiffs to seek immediate medical attention for their son when Dr. Pierson spoke to Mr. Lujan on April 9, 2008. The Defendants denied all allegations of negligence and claimed Vaughn’s death was due to his developing a virulent strain of pneumococcal meningitis after Vaughn was seen by Defendant Stephen.
$950,000 Settlement in Shoulder Dystocia/ Brachial Plexus Injury Case
Daryl L. Zaslow obtained a $950,000 recovery on behalf of young girl with a permanent brachial plexus injury she sustained during her birth which was complicated by shoulder dystocia. “Shoulder dystocia” occurs when a baby’s shoulder gets trapped behind the mother’s pubic bone during delivery. In these circumstances the physician is required to use certain maneuvers to free the stuck shoulder without causing injury. To prevent injury to the brachial plexus nerves running from the neck through the shoulder/arm, the standard of care requires that the delivering physician not exert excessive force in attempts to deliver the child. In this delivery, Mr. Zaslow argued the obstetrician applied too much traction or pulling during delivery, and failed to utilize accepted maneuvers to deliver the child, resulting in a permanent brachial plexus injury, manifested by physical deformity, and, limited function of the shoulder, arm and hand (Erb’s and/or Klumpke’s Palsy). Although the injured child has a permanently injured arm, a tendon transfer surgery was successful in limiting the extent of the injury.
$900,000 Settlement for Obstetrician Negligence Resulting in Erb’s Palsy
Tycey and Darren Jackson claimed that Dr. Charles Haddad allegedly used too much traction to dislodge their daughter Autumn’s shoulder during her birth at Valley Hospital in Ridgewood on May 9, 2006. The shoulder had become stuck behind the mother’s pubic bone, a condition known as shoulder dystocia.
As a result of excessive force, the girl was born with Erb’s palsy, a permanent paralyzing injury to the brachial plexus that limits use of her left shoulder, arm and hand, says the plaintiffs’ lawyer, Daryl Zaslow of Eichen Crutchlow Zaslow in Edison. Autumn might need surgery as she grows, he adds.
The settlement was reached on Sept. 20 and Superior Court Judge Robert Polifroni approved it after a friendly hearing. Part of the money will buy two annuities and about $104,000 will be held by the court until Autumn is 18, to pay for uncovered medical costs, Zaslow says. Click here to read more about the case.
$850,000 Settlement Anesthesiology Malpractice Wrongful Death Case
Daryl L. Zaslow obtained an $850,000 settlement on behalf of the Estate of 63 year old man who died from anesthesiology events following cardiac surgery. The decedent had a history of cardiac failure and diabetes and had been on disability since he was 51 years old. In 2003, the decedent underwent a procedure to remove infected defibrillator wires. There were complications incurred pre-operatively in attempting to intubate the patient due to rotund and thick airway. At the end of the surgery, a pulmonologist was called to perform a consultation due to concerns about the patient’s post-operative airway. Ultimately the anesthesiologist and pulmonologist extubated the patient, he went into respiratory and then cardiac arrest and died. The defense experts opined that the decedent died as a result of cardiac failure unrelated to the anesthesiology complications and extubation. Mr. Zaslow’s theory was that the Plaintiff sustained an upper airway obstruction due to traumatic attempts at intubation and premature extubation by the defendants. As a result, the decedent sustained respiratory failure which caused his cardiac arrest and death. Mr. Zaslow retained experts in the fields of anesthesiology, pulmonology, cardiology and internal medicine who supported this theory.
Confidential Settlement for Insurance Limits for Failure to Make Prenatal Diagnosis of Hypoplastic Left Heart
Daryl L. Zaslow represented a teenage boy who went into congestive heart failure and ductal shock when he was just 9 days old. It was later learned that the heart failure was a result of Hypoplastic Left Heart Syndrome which went undiagnosed in utero during his mother’s prenatal care. Hypoplastic left heart syndrome occurs when parts of the left side of the heart (mitral valve, left ventricle aortic valve, and aorta) do not develop completely. Mr. Zaslow argued that the radiologist and technician who were involved in the interpretation and performance of the mother’s prenatal ultrasound at 18 weeks gestation failed to appreciate and report an abnormal four chamber view of the fetal heart.
Mr. Zaslow retained experts who opined that the failure of the radiologist to report an abnormal fetal heart contributed to the long term cardiac and renal problems the boy suffers today. According to the Plaintiff’s experts, had the prenatal diagnosis of a Hypoplastic Left Heart Syndrome been made, the baby would have been given timely interventions including the administration of Prostaglandin to maintain circulation and this would have resulted into a better prognosis.
Although the specific monetary terms of the settlement are subject to a confidentiality agreement, Mr. Zaslow was able to get separate insurance coverage for the radiologist, the ultrasonographer and the radiology group and that the amount of the settlement was for their maximum insurance coverage in the case.