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Johnson County jury awards $2.88 million in malpractice case against pain clinic

At its largest, the lump looked like half a red racquetball stuck in the middle of Joel Burnette’s lower back.

Burnette went back to PainCARE on Jan. 13, 2009, for a second epidural injection from Eubanks.

In his deposition, Burnette said he told a nurse at the clinic about the lump. “She took a look at the lump and she said, ‘Well, give me a few minutes, I want to go talk to the doctor.’ She came back and she said, ‘The doctor said it’s no problem.’ ”

Eubanks said in his deposition that he had no recollection of treating Burnette, other than what was contained in the clinic’s medical records. Those records make no mention of swelling on Burnette’s back.

“If it’s not in the record, it didn’t exist,” Eubanks said.

Nutter, the Burnettes’ lawyer, contends that the first injection Eubanks gave Burnette caused the infection and that the needle for the second injection passed through the infected area and contaminated Burnette’s spinal cord.

The medical record shows that the entire procedure for the second injection was done in three minutes.

“How careful could they possibly have been?” Nutter asked.

Burnette’s condition deteriorated rapidly after that final injection. Short recalled that Burnette would visit her and sit immobilized on her couch, with his back and legs aching, his neck stiff and his head on fire with pain. Burnette thought that he had a bad case of the flu, she said.

But Short was worried. She called a nurse help line and was told Burnette had symptoms of meningitis. Visiting Burnette at his apartment on Jan. 21, 2009, Short found him disoriented. She drove him to St. Luke’s Hospital’s emergency room. There, he was diagnosed with meningitis caused by antibiotic-resistant MRSA bacteria. He was told he probably would die or be paralyzed. But after about 10 days, he pulled through.

The infection left Burnette with overwhelming spinal injuries. Damaged and chronically inflamed spinal nerves left him impotent and without control of his bladder or bowels. He had trouble walking and was constantly in pain.

“It was devastating,” Gail Burnette recalled last week through her tears.

“Even though you knew Joel was in pain, he tried not to show it. He didn’t want us to experience it. He was trying to shield us,” Vernon Burnette said.

Their son filed a lawsuit against PainCARE and its doctors in December 2010 because he was finding it impossible to work and wanted to ensure he had the money needed for future medical care and help at home, his father said.

“Joel wanted to be independent, take care of his own needs. He wanted his dignity, and he didn’t want to be a burden to us,” his father said.

Burnette took his life before his case could be heard in court. His parents said he had a history of bipolar disorder and in the past had admitted himself to psychiatric hospitals for treatment of depression. But in recent years, those issues had been under control, his parents said.

The pain and disability changed things, Vernon Burnette said. “I told him to reach for as much as he could. I think he was doing that. I guess that wasn’t enough for him.”

Burnette’s parents said they took up the lawsuit against PainCARE and Eubanks to raise public awareness about the risks of complications from pain injections.

Even if the jury award stands, Burnette’s parents won’t collect the full amount. By Kansas law, non-economic damages, so-called pain and suffering awards, are capped at $250,000. That means the Burnettes’ award can be no higher than about $1.67 million.

In any case, Burnette’s father doesn’t see the jury award as compensation. “There’s a hole here. You can never fill it.”

“We want to find something worthwhile to do with the money, something Joel would do with it,” he said. “I think Joel deserves a legacy, something to help other people. We will do something where we know Joel will be smiling.”

April 6, BY ALAN BAVLEY – The Kansas City Star

Read more here:http://www.kansascity.com/2014/04/06/4941837/pain-clinic-faces-steep-penalty.html#storylink=cpy