$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.”