$18 Million Against Two ER Doctors Who Missed a Fracture and a Chance to Report Abuse

On February 17, 2017, a jury in the Superior Court of New Jersey, Gloucester County, returned a $45 million verdict in Burgos-Bonilla v. Diorio, docket GLO-L-000305-13, a medical malpractice case built on a hospital's failure to recognize and report a suspected case of child abuse. Adam M. Starr, then of Jarve Kaplan Granato Starr, LLC and now of Jarve Granato Starr, LLC in Marlton, tried the case for the plaintiff.

The case traced back to 2005, when a two-month-old infant was brought to the emergency department because he would not straighten his right leg and cried whenever it was touched. A teleradiologist read the initial X-rays as normal, and the child was discharged. The next day, a follow-up radiology review flagged a possible femur fracture and recommended additional imaging. That discrepancy was called in to the emergency department, but the attending physician on duty never contacted the family to bring the child back in.

Three weeks later, the infant was rushed back to the same emergency department with seizures and an altered mental state. This time, doctors found a skull fracture and bleeding inside his skull. A subsequent investigation found that the child's father had admitted to becoming frustrated when the baby would not stop crying, picking him up, and throwing him down. The child was left with permanent brain damage. The father was sentenced to eight years in prison in 2008.

Years afterward, once the child's family could establish what the hospital had known and when, they sued the treating emergency physicians, arguing that if the femur fracture had been recognized and reported as a probable sign of abuse when it was first flagged, the intervening three weeks that led to the brain injury would never have happened. After roughly six hours of deliberation, the jury agreed, returning a $45 million award. The jury put 60 percent of the fault on the child's father, 35 percent on the attending who never followed up on the flagged X-ray discrepancy, and 5 percent on the physician who discharged the child after the initial, incorrectly normal read. The jury assigned no liability to the radiologist who first missed the fracture.

What happened to the verdict after the jury was discharged is harder to pin down. No appellate opinion under this case name turned up in a search of New Jersey court records, and no news coverage of a post-trial motion, reduction, or settlement was found. Large medical malpractice verdicts against hospital-affiliated physicians are frequently resolved through confidential post-verdict negotiation once appeal rights are exhausted or waived, and that may be what happened here, but it cannot be confirmed from public sources. What is documented is the jury's finding itself: that a hospital's failure to close the loop on a radiology discrepancy involving a two-month-old cost three weeks that a father used to inflict permanent, irreversible harm.