BIRMINGHAM, Ala. (WIAT) — In early October, Birmingham doctor Theresa Bolus asked a court to dismiss a lawsuit filed against her related to the death of 7-year-old Kamiya Dufermeau. Now, Kamiya’s mother Sherry Robinson has formally objected, saying the wrongful death claim should move forward.
In a court document filed Wednesday, lawyers for Robinson opposed the motion to dismiss her suit put forward by Bolus.
Kamiya Dufermeau became sick in mid-April and was diagnosed with appendicitis. After more conservative, nonsurgical interventions did not improve her condition, Dr. Colin Martin performed a laparoscopic appendectomy on her.
About a week later, Kamiya still felt lethargic, tired, and weak. On May 4, Kamiya’s mother brought her daughter to Dr. Theresa Bolus, a physician at Midtown Pediatrics, a facility run by Children’s of Alabama.
Bolus diagnosed the child with pinworms and sent her home. She did not conduct a physical exam, according to Robinson’s suit.
The day after Kamiya’s doctor’s visit, her grandmother called 911, and paramedics arrived to find the 7-year-old without a pulse. She was brought to Children’s of Alabama where doctors “performed four rounds of pediatrics advanced life support,” according to the lawsuit. Their efforts were not successful.
An autopsy conducted by Jefferson County Coroner & Medical Examiner’s Office showed that Kamiya died “because of an undiagnosed and untreated postsurgical 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 contained over a dozen defenses. In one section of the filing, Bolus’ legal team claimed 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 cited 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.
The wrongful death lawsuit also claims that Kamiya’s surgeon, Colin Martin, and his office were responsible for providing her daughter with meaningful follow-up care after her surgery.
“The standard of care required that Dr. Martin at minimum perform a history and physical on Kamiya following her appendectomy and especially given her presentation with signs and symptoms of a postsurgical bowel complication on May 4, 2021,” the suit said.
Martin has also denied legal liability for Kamiya’s death in court filings.
Dr. Francois Blaudeau, who represents Kamiya’s mother in her suit, called parts of Bolus’ response to the lawsuit “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.
The wrongful death case is being heard by Judge Jim Hughey III.