BIRMINGHAM, Ala. (WIAT) — A Birmingham doctor is responding to a lawsuit filed against her, another doctor, and Children’s of Alabama following the death of 7-year-old Kamiya Dufermeau after a routine appendectomy earlier this year.
In court documents filed Friday, attorneys for Dr. Theresa Bolus list 17 separate defenses against the wrongful death suit, which claims that Bolus did not meet the required standard of care in treating Kamiya after her surgery.
Kamiya became sick in mid-April and was diagnosed with appendicitis. After more conservative, nonsurgical interventions did not improve her condition, Dr. Colin Martin, a Children’s of Alabama employee, performed a laparoscopic appendectomy on her.
About a week later, Kamiya still felt lethargic, tired, and weak. On May 4, Kamiya’s mother Sherry Robinson brought her daughter to Bolus, a physician at Midtown Pediatrics, which is owned and run by Children’s of Alabama.
“During the appointment with Dr. Bolus, Kamiya showed signs and symptoms of a post-surgical complication, including nausea, vomiting, lethargy, and emesis, which Dr. Bolus witnessed,” the lawsuit, filed by Kamiya’s mother, claims. “The standard of care for a pediatrician required Dr. Bolus to recognize the signs and symptoms of a post-surgical complication and intervene appropriately, including a physical exam of the abdomen and imaging studies.”
Bolus, the suit says, did not conduct a physical exam of Kamiya during the appointment.
The next day, Kamiya’s grandmother called 911, and EMS arrived to find Kamiya without a pulse. She was brought back to Children’s of Alabama where doctors “performed four rounds of pediatrics advanced life support,” according to the lawsuit. They were not able to save Kamiya.
An autopsy showed “that Kamiya died because of an undiagnosed and untreated post-surgical bowel complication.”
“Dr. Bolus had a duty to exercise reasonable care, skill, and diligence in the evaluation, diagnosis, and treatment of Kamiya Dufermeau,” the suit claims. “Dr. Bolus negligently breached this duty and the applicable standards of care in the manner herein, and Kamiya Dufermeau died as a direct and proximate result thereof.”
In her response to the suit, Bolus “denies that she was guilty of any medical negligence or breach of the applicable standards of care” in relation to Kamiya. While Bolus admits that she witnessed Kamiya vomiting, her lawyers argue that she did not perform an “incomplete evaluation and misdiagnosis of pinworms as the cause” of Kamiya’s symptoms.
Bolus’ response to the suit contains well over a dozen defenses. In one section of the filing, Bolus’ legal team claims that, as applied to their client, Alabama’s Wrongful Death Act violates the Fifth, Sixth, Eighth, and Fourteenth Amendments to the U.S. Constitution.
Another portion of Bolus’ response cites the U.S. Supreme Court case BMW of North America, Inc. v. Gore as a reason the suit’s claim for punitive damages “cannot be upheld.” That case involved a man’s claim that BMW had sold him a car that had been repainted. An Alabama jury awarded the man $4 million in punitive damages, but the nation’s highest court reversed that judgment, saying that the damages were “grossly excessive” and violated the Constitution.
Dr. Francois Blaudeau, who represents Kamiya’s mother in her suit, called parts of Bolus’ response “troubling,” specifically the claim that the pediatrician met the standard of care in Kamiya’s case.
“Dr. Bolus admits that she took a wait-and-see approach, telling the patient to leave and instructing the mother to bring Kamiya back to the clinic if she continues to feel poorly/vomit,” Blaudeau said in an email. “The minimum standard of care simply required Dr. Bolus to do more than take a wait-and-see approach. The vomiting after surgery was an indication to do more.”
Children’s of Alabama has refused to comment on the case and has not yet responded to the suit in court. Bolus is the first defendant to respond to the complaint. The wrongful death case is being heard by Judge Jim Hughey III.
You can read Dr. Bolus’ complete legal response below.