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Doctors should have detected infant's abuse, mother claimed

Amount:

$45,000,000

Type:

Verdict-Plaintiff

State:

New Jersey

Venue:

Gloucester County

Court:

Gloucester County Superior Court

Injury Type(s):

head-fracture, skull; brain-brain damage; brain-internal bleeding; chest-fracture, rib; arterial/vascular-internal bleeding

Case Type:

Medical Malpractice - Radiologist, Emergency Room, Failure to Test, Failure to Treat, Failure to Detect, Failure to Diagnose, X-ray Interpretation; Domestic Relations - Child Abuse and Neglect; Medical Malpractice - Failure to Communicate

Case Name:

Sabrina Bonilla, on behalf of Ethan Burgos-Bonilla v. Dominic A. Diorio, William A. Martin, SJ Emergency Medicine Assoc, SJ Health Care, South Jersey Health Care, John Burgos, Ilmia Choudhary, John Does 1-5, John Does 6-10, John Does 11-15, No. GLC-L-000305-13

Date:

February 17, 2017

Parties

Plaintiff(s):

Sabrina Bonilla (Female), 

Ethan Burgos-Bonilla (Male, 2 Months)

Plaintiff Attorney(s):

Adam M. Starr; Jarve Kaplan Granato Starr, LLC; Marlton, NJ, for Sabrina Bonilla, Ethan Burgos-Bonilla

Plaintiff Expert(s):

David Hopkins; A.S.A.; Economics; King of Prussia, PA called by: Adam M. Starr ■ Daniel Adler; M.D; Pediatric Neurology; Englewood, NJ called by: Adam M. Starr ■ Robert Belfer; M.D.; Pediatrics; Turnersville, TX called by: Adam M. Starr ■ Michael Blaivas; M.D.; Emergency Medicine; St. Augusta, GA called by: Adam M. Starr

Defendant(s):

John Burgos, 

SJ Health Care, 

Ilmia Choudhary, 

Dominic A. Diorio, 

William A. Martin, 

South Jersey Health Care, 

SJ Emergency Medicine Association

Defense Attorney(s):

Mark A. Petraske; Buckley Theroux Kline & Petraske, LLC; Princeton, NJ, for Ilmia Choudhary ■ Michael Halpin; Grossman & Heavey PC; Brick, NJ, for SJ Health Care, South Jersey Health Care, SJ Emergency Medicine Association ■ Timothy O'Brien; Crammer, Bishop & O'Brien; Absecon, NJ, for Dominic A. Diorio

Defendant Expert(s):

Denis Dollard; Emergency Medicine; Philadelphia, PA called by: Mark A. Petraske ■ Henry Smoak; Emergency Medicine; Tampa, FL called by: Michael Halpin ■ Robert Sweeney; Emergency Medicine; Neptune City, NJ called by: Timothy O'Brien

Facts:

On Nov. 27, 2005, Sabrina Bonilla took her two-and-a-half-month-old son, Ethan Burgos-Bonilla, to South Jersey Regional Medical Center, in Vineland, complaining that her child was unable to straighten his right leg and would cry when the leg was touched. Emergency room physician Dominic A. Diorio ordered X-rays of the child's leg, after which the films were read by an on-call radiologist linked remotely by the radiologist's home-computer that evening. The radiologist concluded there was no definite fracture of the leg. The next morning, another radiologist viewed the X-ray, and concluded that it showed a possible femur fracture of the right leg. The radiologist also indicated that additional X-rays were needed to confirm. However, no additional X-rays were performed. The hospital had no further contact with the family until Dec. 17, 2005, when Bonilla returned with the infant to the ER, complaining that he was suffering seizures and an altered mental state. The child was diagnosed with a skull fracture, intracranial bleeding, and multiple healing fractures to the ribs and right femur. The child's father, John Burgos, was later charged with second-degree aggravated assault and second-degree endangering the welfare of a child, his infant son. According to court documents, Burgos said he had become frustrated because his child would not stop crying and had thrown him into his crib on two occasions and his son hit his head. Burgos was convicted of the charges and sentenced to eight years in prison. Sabrina Bonilla, on behalf of Ethan Burgos-Bonilla, sued Diorio, attending physicians Choudhary, and William A. Martin, SJ Emergency Medicine Associates, SJ Health Care, and South Jersey Health Care. She alleged that Diorio should have diagnosed the child's fractured leg and that Choudhary should have contacted the infant's parents to arrange for additional tests after the hospital's radiologist sent her an order for additional X-rays. Bonilla claimed SJ Emergency Medicine Associates, SJ Health Care, and South Jersey Health Care were vicariously liable for the negligence of the ER staff who, it was claimed, were agents/employees. Bonilla's suit against William A. Martin was dismissed prior to trial, after it was determined he was not involved with the treatment of the infant. Bonilla's emergency room expert opined that Diorio deviated from the standard of care by failing to properly diagnose and treat the infant's femur fracture. He further opined that Choudhary deviated from the standard of care by failing to properly review and act on the final radiology report that noted a possible femur fracture. Bonilla's pediatric ER medicine expert opined that if Diorio and/or Choudhary had properly discharged their duties, the Division of Youth and Family Services would have been notified and the infant would have been protected from the abuse that occurred in December 2005, by the child's father. Diorio and Choudhary denied departing from the standard of care. Choudhary contended she never received the radiologist's report for additional X-rays and tests. Diorio's emergency medicine expert opined that Diorio did not deviate from the standard of care. He indicated that his opinion was premised on Diorio's positon that the teleradiologist, who did the initial reading of the infant's X-ray, told him there was "no fracture" and that further views were not necessary. (Bonilla's counsel claimed this was disputed by the teleradiologist, who testified that he never would have told that to Diorio because the film was a "limited study" and showed no "definitive fracture.") Choudhary's emergency room expert opined that she did not deviate from the standard of care, because, in his opinion, she never received the final radiology report and could not be held responsible for something she never knew existed. South Jersey Health Care denied negligence. Its emergency room medicine expert opined that neither Diorio nor Choudhary deviated from the standard of care, because they were not told that abuse occurred and did not know there was a femur fracture. South Jersey Health Care initiated a third-party claim against John Burgos, alleging he was the sole cause of the child's injuries. The hospital got a default judgment on liability against Burgos, prior to trial.

Injury:

Ethan Burgos-Bonilla suffered brain damage, and was required to be fed through a tube for several years. The child is currently able to feed himself on his own. The child's pediatric neurology expert opined that he has permanent brain damage. The child's life-care planning expert opined that he will need nursing and support services during the course of his remaining estimated lifespan of 68 years.

Result:

The jury found John Burgos was 60 percent at fault, Ilmia Choudhary was 35 percent fault, and Dominc Diorio was 5 percent at fault. Choudhary and Diorio were found to be agents of South Jersey Health Care. The jury determined that Ethan Burgos-Bonilla's damages totaled $45 million.

Trial Information:

Judge:

Douglas M. Fasciale

Trial Length:

4  weeks

Trial Deliberations:

6  hours

Editor's Comment:

This report is based on information that was provided by plaintiff's counsel and by defense counsel for Dominic A. Diorio. Defense counsel for SJ Emergency Medicine Associates, SJ Health Care, South Jersey Health Care, and Ilmia Choudhary did not respond to the reporter's phone calls.