Pediatrician fails to hospitalize infant, who dies of pneumonia. $2M. San Bernardino County.


Infant is seen in ER and referred to pediatrician for follow-up care. Plaintiff alleges care was negligent and led to infant's death from bacterial pneumonia.

The Case

  • Case Name: Velanta Babbitt v. Cheryl Emoto, M.D., Prime Healthcare, et al.
  • Court and Case Number: San Bernardino Superior Court / CIVDS1503504
  • Date of Verdict or Judgment: Thursday, October 22, 2020
  • Date Action was Filed: Wednesday, March 11, 2015
  • Type of Case: Medical Malpractice, Wrongful Death
  • Judge or Arbitrator(s): Hon. Gilbert Ochoa
  • Plaintiffs:
    Velanta Monique Babbitt (Mother of infant decedent Darion Brewer)
  • Defendants:
    Prime Healthcare Services
    Cheryl Emoto, M.D.
    LaSalle Medical Associates
    Meridian Urgent Care and Occupational Health Center
  • Type of Result: Jury Verdict

The Result

  • Gross Verdict or Award: $2,002,500 against Dr. Cheryl Emoto only.
  • Award as to each Defendant:

    Verdict as to Dr. Cheryl Emoto only.

    The hospital and the urgent care facility reached an out-of-court settlement prior to trial.

  • Economic Damages:


  • Non-Economic Damages:


  • Trial or Arbitration Time: 5 weeks.
  • Jury Deliberation Time: 3 days.
  • Jury Polls: 11-1

The Attorneys

  • Attorney for the Plaintiff:

    Law Offices of Elliott N. Tiomkin by Elliott Tiomkin, Encino.

  • Attorney for the Defendant:

    Schmid & Voiles by Margaret Cahill, Orange.

The Experts

  • Plaintiff’s Medical Expert(s):

    Kevin White, M.D., pediatrics//infectious diseases, Ventura.

  • Defendant's Medical Expert(s):

    Shakeh Mazmanian, M.D., pediatrics.

    David Talan, M.D., emergency medicine/infectious diseases. 

    Richard Ruffalo, M.D., pharmacology.

Facts and Background

  • Facts and Background:

    Over a nine-day period, seven-month-old Darion Brewer was seen in defendant Prime Healthcare's Desert Valley Hospital emergency room, at an urgent care facility and at another medical facility for symptoms consistent with pneumonia.

    The hospital performed a chest X-ray and placed Brewer on a course of Zithromax, an antibiotic. The chest X-ray came back positive for pneumonia. All of the medical providers referred Brewer to his primary care pediatrician.

    Brewer died four days after last seeing his primary care doctor, and the pathology report found that the cause of death was acute pneumonia. At autopsy, decedent's lungs were in an advanced state of destruction with acute pneumonia in all sections. Bacterial blood cultures came back positive for two uncommon bacteria; common viral tests were negative.

  • Plaintiff's Contentions:

    That defendant pediatrician was negligent in providing medical treatment and that her negligence was a substantial factor in decedent's death.

    Plaintiff's expert pediatrician testified that decedent was partially but ineffectively treated with the antibiotic, that he died of untreated bacterial pneumonia and that defendant violated the standard of care. 

    On Jan. 6, 2014, decedent child was seen by his primary care pediatrician, defendant Dr. Cheryl Emoto. Defendant noted in her chart that nine days and three sick visits after he was placed on an antibiotic in the ER, Brewer was not getting better and was experiencing respiratory distress, including coughing, wheezing, and an abnormal breathing pattern. Additionally, Brewer had lost over six percent of his body weight and had an elevated respiratory rate.

    Dr. Emoto noted that Brewer was at risk for hospitalization. Nevertheless, Dr. Emoto failed to obtain Brewer's prior medical and radiology records, failed to obtain an oxygen saturation or a heart rate, failed to perform a chest X-ray, failed to re-evaluate the viability of the antibiotic, failed to evaluate Brewer for dehydration, and failed to hospitalize Brewer or otherwise escalate care.

    Dr. Emoto misdiagnosed Brewer with bronchiolitis and prescribed him an albuterol breathing treatment. Dr. Emoto discharged Brewer home and advised the family to follow up in a week if he did not improve.

    Plaintiff's expert stated that given the original hospital radiology report, the continuing clinical symptomology, and the findings of the final pathology report, untreated bacterial pneumonia was the probable cause of decedent's death. Plaintiff claimed that defendant misdiagnosed and failed to properly treat decedent, resulting in wrongful death.

    On rebuttal to defense experts' testimony, plaintiff's expert testified that Zithromax has been found to be effective against some of these bacterial strains and these bacteria are an uncommon but documented cause of community-acquired pneumonia.

  • Defendant's Contentions:

    Defendant claimed that she met the standard of care and that neither Dr. Emoto’s conduct nor LaSalle Medical Associates caused the child’s death. 

    The aunt/foster mother admitted that the child was not taken to the Urgent Care because he was worse, but because she wanted more antibiotics. Defendant contended that the child’s condition improved with a breathing treatment given in the office and which the foster mother/aunt had been giving since he was discharged from the hospital. The child did not have fever at any time since being discharged from Desert Valley Hospital on 12/28/2013. The family took the child on a trip to Texas by car on or about 1/8/2014.  His aunt testified that he was not ill or she would not have taken him out of state.   

    Dr. Emoto noted that Brewer was at risk for hospitalization which is why she ordered a nebulizer to be delivered. The chest X-ray done at the hospital was not reported to Dr. Emoto and defendant’s emergency-room expert testified that the findings were consistent with bronchiolitis and possible right upper pneumonia. There was no right upper lobe pneumonia at autopsy.  Dr. Emoto discharged Brewer home and advised the family to follow up in two days. The aunt testified that she was told she could bring him back the following Monday, however, that was disputed. Dr. Emoto denied being told that a 14-hour car trip to Texas was being taken and that she would have seen the child before he left if she had been told.

    The defense called three experts, including a pediatrician, pharmacologist and an infectious disease expert. The defense contended that defendants did not violate the standard of care and argued that decedent died of aspiration pneumonia caused by vomiting and inhaling the contents of his stomach shortly before his death.

    Decedent had the cough/sleep medicine Doxylamine in his system, which is contraindicated for infants and has been linked to deaths in young children. The defense contended that decedent was sedated and he was noted to be limp when taken out of the car by the aunt after vomiting as they were leaving Texas. Paramedics were called and he was suctioned multiple times. No one in the family admitted to giving the child this contraindicated medication which the defendants contended was the actual cause of death.

    The defense contended that the two bacteria found in decedent's blood (enterococcus and enterobacter) do not cause community-acquired pneumonia, and are commonly found in the GI tract, and would not have been treated by Zithromax. Defendant’s experts contended that plaintiff’s expert was mischaracterizing the literature and that there are no studies establishing that the Zithromax treats these organisms and it is not approved by the FDA for such use because it is ineffective.

    All three of defendants’ experts agreed that these virulent bowel and gut organisms could not have been present since the initial ER visit on 12/28/13 as contended by plaintiff’s expert as they are not treated by Azithromycin and the FDA has not approved them for such use. 

    The child died on 1/11/2014 (there was an error on the death certificate per the aunt) which was five days after last being seen by any providers. The aunt testified that the child seemed better until he vomited and died and she had not taken him in to another provider.  Defendant's experts testified that this is inconsistent with a child with pneumonia from virulent organisms.


Injuries and Other Damages

  • Physical Injuries claimed by Plaintiff:

    Death of infant son.

Demands and Offers

  • Plaintiff §998 Demand: $30,000 to Dr. Emoto.
  • Defendant §998 Offer: Waivers of costs offered by 998 by both defendants.

Additional Notes

Per defense counsel:

The court denied the defendant's motion to dismiss based on the five-year statute of limitations which expired on 3/11/2020 before the COVID emergency orders went into effect. Defense contended that even if the plaintiff received the benefit of a six-month extension of the five-year statute due to emergency orders entered 3/23/2020, that the extended five-year statute, expired on 9/09/2020 and the court lost jurisdiction to try the matter. 

Per plaintiff's counsel:

The court found that it was impracticable to bring the case to trial within the five-year statute because San Bernardino courts were closed due to COVID-19. Court denied the defendant’s motion to dismiss.