On May 21, 2019, a New Jersey judge approved a $1.7 million New Jersey medical malpractice settlement involving an obstetrician and a midwife for their alleged failures to timely detect that the plaintiff’s child in utero had Down syndrome, thereby precluding the plaintiff from the right to determine how her pregnancy should (or should not) proceed.
The Underlying Facts
On September 24, 2014, the plaintiff had a routine second trimester ultrasound that was interpreted by the defendant obstetrician. The plaintiff alleged that the ultrasound results showed a fetal sandal gap (a sandal gap deformity, also known as hallux varus, is an imaging observation in antenatal ultrasound typically during second trimester where there is an expanded first interspace, i.e. the gap between the great toe of the foot from the rest of the toes, which is likened to the gap caused by a sandal). A sandal gap is found in 45% of babies born with Down syndrome but is not a typical finding in other syndromes. A sandal gap may be a normal variant, occurring in many normal fetuses or neonates. However, if the findings of prenatal sonographic examination suggest sandal gap deformity, a careful search for other risk factors for Down syndrome is recommended.
The plaintiff alleged in her New Jersey medical malpractice claim that the defendant obstetrician failed to advise her of the sandal gap finding, and that if the defendant had advised her of such, she would have had an amniocentesis that would have diagnosed her fetus as having Down syndrome, in time for her to make a decision whether to abort the fetus. The defense argued that the plaintiff’s ultrasound did not show a sandal gap and even if there was a sandal gap, the standard of care did not require that the defendant obstetrician advise the plaintiff of such because a sandal gap is not considered a reliable soft marker for Down syndrome.
The plaintiff’s medical malpractice claim against the defendant certified nurse-midwife alleged that she performed genetic testing to determine chromosomal abnormalities, the results of which she reported to the plaintiff as “normal,” but failed to consider the plaintiff’s aged-related risk factor along with the numeric test value of the risk of fetal abnormality. The plaintiff alleged that had such a conversation taken place, she would have undertaken further genetic counseling and testing that would have diagnosed the fetus’ abnormality. The defense argued that the defendant midwife’s reporting of the results of the genetic testing as normal did not breach the standard of care.
The defendant obstetrician reportedly contributed her medical malpractice policy limit ($1,000,000) to the settlement; the defendant midwife contributed $500,000; and, the defendant hospital paid $200,000. The settlement was approved by a judge on May 21, 2019, after a hearing on the friendly suit.
The New Jersey medical malpractice lawsuit is captioned Aguasvivas v. Langer-Most.
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