Medical malpractice failure-to-diagnose case settles for $1.7M

A recent medical malpractice suit claimed that an OB-GYN and a midwife failed to tell a pregnant woman that she was carrying a fetus with Down syndrome.

By David Gialanella

Medical malpractice Insurance, Commercial Insurance, Medmal insurance, Waterford, Michigan
According to the American Medical Association, general surgeons and obstetrician-gynecologists are at the greatest risk of facing medical liability lawsuits. (Photo by Getty Images)

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A judge in Union County on May 21 approved a $1.7 million settlement in Aguasvivas v. Langer-Most, a medical malpractice suit claiming that an obstetrician-gynecologist and a midwife failed to notify a pregnant woman that she was carrying a fetus with Down syndrome.

Plaintiff Karla Solorzano underwent a second-trimester ultrasound test on Sept. 24, 2014, at Trinitas Regional Medical Center in Elizabeth, N.J., that was interpreted by defendant obstetrician-gynecologist Orly Langer-Most. The test showed the presence of a fetal “sandal gap,” an abnormally large space between the first and second toe that is found in 45% of babies born with Down syndrome, according to plaintiff lawyer Daryl Zaslow of Eichen Crutchlow Zaslow of Red Bank.

But the suit claimed Langer-Most did not tell Solorzano of the presence of a marker that is associated with Down syndrome. If Solorzano had been notified, she could have made an informed decision to pursue an amniocentesis. Had an amniocentesis been performed, it would have diagnosed Down syndrome and allowed Solorzano to terminate the pregnancy, Zaslow said. The suit claimed monetary and emotional damages.

Solorzano also underwent a diagnostic test for chromosomal abnormalities called a “quad screen,” with Carol Rose-Trzaska, a certified nurse-midwife employed by Trinitas. Rose-Trzaska told Solorazno the results were “normal,” according to Zaslow, but the suit maintained that such advice deviated from the standard of care. The suit claimed Rose-Trzaska should have reviewed Solorzano’s age-related risk along with her numeric test value risk of fetal abnormality. Then the plaintiff would have had a further discussion about testing options and genetic counseling, Zaslow said.

Appropriate standard of care

Defense experts said the ultrasound was normal and did not demonstrate a sandal gap, according to Zaslow. Defense experts were also prepared to testify that a sandal gap is not considered a reliable soft marker for Down syndrome and therefore should not be used as the basis for counseling of patients, said Zaslow. Experts for Rose-Trzaska opined that she did not deviate from the standard of care by communicating the quad screen results as normal, he said.

Solorzano’s son, Fabian Aguasvivas, now 4, was born with Down syndrome. A suit filed on behalf of the child and his mother named Langer-Most, Trinitas and Rose-Trzaska as defendants. Under a settlement reached by the parties, Langer-Most paid her policy limits of $1 million, Trzaska paid $500,000 and Trinitas Regional Medical Center paid $200,000. The settlement was approved by Superior Court Judge Mark Ciarrocca at a friendly hearing on May 21.

Langer-Most was represented by James Vasios of Vasios, Kelly & Strollo in Union. Rose-Trzaskas’ lawyer was Evelyn Farkas of Farkas & Donohue in Florham Park. The lawyer for Trinitas was Catherine Flynn of DeCotiis FitzPatrick & Cole in Teaneck. The defense lawyers did not return calls about the case.

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