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 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 percent 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, and 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.

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.

— Charles Toutant

$1.2M Accord in Fatal Pedestrian Case

Estate of Kettles v. Kane: The family of a pedestrian who was struck and killed by a truck that drove onto a sidewalk was paid $1.2 million on March 15 to settle their Essex County wrongful death suit.

According to an attorney in the case and court documents, David Kettles, 45, was struck and killed on Dec. 16, 2013, on a sidewalk along Routes 1 & 9 in Elizabeth. The accident occurred just after he disembarked from a New Jersey Transit bus and took a few steps. The vehicle that killed Kettles was a tractor-trailer owned by YRC Inc. and operated by its employee, Gary Kane.

Kettles sustained multiple pelvic and rib fractures, and died from internal bleeding during surgery three hours after he was hit, said Tracey Hinson of Hinson Snipes in Princeton, who represented the decedent's estate.

Kane admitted driving his truck at the time and place of the accident but denied hitting Kettles. YRC admitted Kane was involved in the accident but claimed Kettles was in the roadway, instead of on the sidewalk, at the time of impact. Video evidence and statements from paramedics and a police detective countered the defendants' assertions, according to Hinson.

Surveillance video obtained from a nearby Sonic restaurant and Wawa convenience store appeared to show the truck driving along a private access road between those businesses at the time Kettles was struck, Hinson said. The video shows the truck did not stop at a stop sign before turning right on Routes 1 & 9 and shows its right rear wheels driving onto the sidewalk and rolling over Kettles' pelvis, she said.

The truck driver's lengthy driving and disciplinary histories, obtained through discovery, showed YRC terminated him twice and issued multiple warnings and suspensions before the crash that killed Kettles, Hinson said.

Despite Kane's poor driving history, YRC safety manager Terry Budimlinger testified that the company lacked the authority to fire Kane due to a collective bargaining agreement, Hinson said.

The settlement was reached on Jan. 25, according to court documents. It was reached following mediation with retired Superior Court Judge Marc Baldwin. The $1.2 million settlement was paid after a post-settlement dispute over a confidentiality provision was resolved before Essex County Superior Court Judge Thomas Vena on March 15, Hinson said.

The lawyers for YRC and Kane, Christopher Midura of Goldberg Segalla in Princeton and Jessie Fontenot Jr. of Strauch, Green & Mistretta in Winston-Salem, North Carolina, did not return calls about the case.

— Charles Toutant