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State v. Burgett

Court of Appeals of Ohio, First District, Hamilton

December 27, 2019

STATE OF OHIO, Plaintiff-Appellee,

          Criminal Appeal From: Hamilton County Court of Common Pleas TRIAL NO. B-1602360

         Judgment Appealed From Is: Affirmed in Part, Sentence Reversed in Part, and Cause Remanded

          Joseph T. Deters, Hamilton County Prosecuting Attorney, and Ronald Springman, Assistant Prosecuting Attorney, for Plaintiff-Appellee,

          Raymond T. Faller, Hamilton County Public Defender, and Sarah E. Nelson, Assistant Public Defender, for Defendant-Appellant.


          Mock, Presiding Judge.

         {¶1} After a jury heard testimony that Monika Burgett mispresented symptoms her young son was allegedly experiencing causing doctors to provide unnecessary treatment and that she misrepresented, on the crowdfunding website, GoFundMe, that her son suffered from a terminal illness, had a brain tumor and no longer had medical insurance, a jury found her guilty of child endangering in violation of R.C. 2919.22(A), a first-degree misdemeanor, and telecommunications fraud in violation of R.C. 2913.05(A), a third-degree felony. The trial court sentenced her to five years of community control, with mandatory psychotherapy treatment and restricted travel outside of Ohio. The court also ordered her "to make restitution in the amount of $26, 381 to Go Fund Me through the probation department."

         {¶2} Burgett now appeals, challenging both convictions and the award of restitution.

         History and Background

         {¶3} Defendant-appellant Monika Burgett is married to Jonathon Burgett, and they have three children. Their primary residence is in Texas, where their youngest child, J.B., was born prematurely, at 25 weeks gestation. He spent the first 100 days of his life in the neonatal intensive care unit. In late 2015, Mrs. Burgett and J.B., then aged three, moved to Cincinnati seeking medical care at Cincinnati Children's Medical Center ("CCMC") for J.B.'s genetic disorder, neurofibromatosis ("NF1"). NF1 is a genetic disorder that causes an accumulation of proteins, or benign tumor-like growths, in various parts of the body. While living in Texas, J.B. had a growth on the roof of his mouth, which caused him pain and difficulty eating and swallowing. To alleviate these symptoms, Texas medical providers inserted a feeding tube into J.B.'s stomach. J.B. also has Chiari malformation, a condition where the base of the brain connected to the spinal cord sits too low and enters into the spinal canal. This condition can cause a compression of nerves, and can limit cognitive function and cause pain. J.B. has not suffered any effects from the Chiari malformation.

         {¶4} Prior to moving to Cincinnati, J.B. began treatment for NF1 at Dell Children's Hospital Comprehensive Care Clinic ("the CCC") in Austin, Texas. Three medical professionals from Texas testified at trial. Dr. Rachel Berhane and nurse practitioner Valerie Maclaurin testified at trial that Mrs. Burgett exaggerated J.B.'s symptoms, falsely represented herself as a doctor and would see other physicians or specialists, without referral, even though the CCC had advised no treatment was warranted. The CCC consulted with Dr. George Edwards, an expert in pediatrics and medical child abuse, who reviewed J.B.'s medical history and found that (1) Mrs. Burgett had misrepresented herself to providers, undermining their confidence in her reporting of J.B.'s symptoms; (2) she had self-referred to other providers without the CCC's knowledge, when the CCC was responsible for coordinating J.B.'s care; and (3) this fragmentation of care caused J.B. to receive unnecessary procedures, which carry a risk of harm. Dr. Edwards advised the CCC to consult with the Burgetts in person and in writing about the doctors' concerns. If that was unsuccessful in resolving their concern over J.B.'s care, then Dr. Edwards advised the CCC to contact child-protective services.

         {¶5} Dr. Berhane testified that she provided a letter to Mrs. Burgett on March 27, 2014, and scheduled a follow-up meeting with the Burgetts and Dr. Edwards, but that Mrs. Burgett canceled the meeting. The CCC contacted child-protective services, but after investigating, the Texas agency closed the case finding the medical-child-abuse claim unsubstantiated.

         {¶6} Jonathon Burgett testified that he and his wife sought second opinions because they wanted the best care for their son and the most noninvasive treatment for him. He said that the family only sought a second opinion in two instances. He testified that they left the CCC and sought treatment in Ohio, believing CCMC could provide the best care for J.B. He explained that their family was suffering financially because of the cost of medical care and living expenses for the family in Texas and Cincinnati. Finally, Jonathon testified on cross-examination that he was unaware that the CCC had provided a letter to Mrs. Burgett detailing their medical professionals' concerns, including the fact that she was exaggerating J.B.'s symptoms.

         {¶7} J.B. began receiving care in Cincinnati in April 2015. He met with a team of doctors, which included Dr. Steven Smith, Dr. Alexandra Szabova, and Dr. Vincent Mukkada. All three physicians testified as experts at trial and noted that medical professionals rely on a caregiver's report of symptoms, especially with young children, in developing a diagnosis and treatment plan. Each doctor expressed concern that Mrs. Burgett's symptom reporting was inconsistent with behaviors the doctors had observed in the clinic, particularly with respect to reports of pain, vomiting, difficulty eating, and J.B.'s need for increased oxygen intake. Because of Mrs. Burgett's symptom reporting, J.B., had a different, "longer," type of feeding tube placed, was prescribed narcotics for pain, and was kept on oxygen, 24 hours a day, limiting his mobility.

         {¶8} Dr. Mukkada reported his concerns to Dr. Robert Shapiro, the director of the Mayerson Center for Safe and Healthy Children, a clinic affiliated with CCMC. Dr. Shapiro, an expert in pediatrics and child abuse, investigated J.B.'s medical history and determined that there was a difference between Mrs. Burgett's symptom reporting and what doctors and nurses were observing during J.B.'s visits. In May 2016, he contacted the Hamilton County Department of Job and Family Services ("HCJFS") to notify it of three specific concerns of potentially unnecessary treatment related to J.B.'s care: (1) pain-management; (2) oxygen intake; and (3) feeding/eating issues. HCJFS began an investigation, which resulted in a "therapeutic separation" between J.B. and Mrs. Burgett. During this separation, J.B. was admitted to CCMC where the doctors treated J.B. based on observation, symptoms, and test results. They discovered that J.B. did not require narcotic pain medication, that he was able to eat by mouth, and that J.B. only required oxygen intake at night.

         {¶9} Chris Lah, the senior director of the revenue cycle at CCMC testified that J.B.'s medical services cost $490, 000, and that J.B.'s private insurance and Ohio Medicaid paid most of it. J.B.'s insurance changed to Medicaid after he was removed from Mrs. ...

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