Today, the Kansas Court of Appeals affirmed in its entirety the $2.88 million verdict obtained in April 2014 in Johnson County, Kan., by SJB attorneys Scott Nutter, John Parisi and Daniel Singer on behalf of Vernon and Gail Burnette against Dr. Kimber Eubanks and his clinic, PainCARE P.A., for the wrongful death of their son, Joel Burnette. The Court held that the evidence at trial proved the medical negligence alleged against the defendants was both the legal and factual cause of Joel’s tragic death. Rejecting every argument the defendants raised on appeal, the Court stated: “Dr. Eubanks and the Clinic ask us to ignore 30 years of precedent and reverse the district court. This we will not do.” The full text of the opinion can be found at: http://www.kscourts.org/Cases-and-Opinions/opinions/CtApp/2016/20160527/112429.pdf.
The case arose following a series of epidural steroid injections performed by Dr. Eubanks on Joel Burnette at PainCARE in Overland Park. In the week following the first treatment, Joel developed a lump at the site of the injection. When he told the nurses at the pain clinic about the lump when he returned for his next injection, Joel was told it was “no big deal.” Doctor and staff vehemently denied that they were told of the lump by Joel or that there was a lump or any abnormality on Joel’s back. Although they maintained there was zero chance that they did so, they (and their experts) agreed that it would be below the standard of care to perform this elective procedure in the face of any sign or symptom of an infection. Following the second injection, Joel developed an epidural abscess, deep tissue infection, and MRSA meningitis. Because of the extent of the infection adjacent to his spinal cord, he was diagnosed with arachnoiditis/cauda equina syndrome, which left him disabled due to nearly constant spine and leg pain, difficulty with ambulation, neurogenic bowel and impotence. Unable to endure the constant physical and emotional pain, Joel ultimately took his own life.
After more than two days of deliberations, the jury returned a verdict for the Burnettes. They awarded $2.88 million, assessing 75% of the fault to Dr. Eubanks and 25% to the staff of PainCARE P.A.
On appeal, in addition to various technical points, the defendants argued that their alleged “contribution” to Joel Burnette’s death was not sufficient to support a finding that they “caused” his death. The Court of Appeals disagreed, finding that the purpose of the law is to hold negligent parties accountable for their proportional responsibility for a wrongful death. As the Court explained: “[I]f your negligence contributes to the cause of death and it is foreseeable, then you can be held liable for that death in proportion to your percentage of fault . . . We are mindful that the jury here could have found Dr. Eubanks caused the wrongful death and set his fault at 100 percent or the Clinic at 100 percent. Instead, the jury assessed fault at 75/25 percent, respectively.” Evaluating the evidence, the Court concluded: “Every negligent act of the doctor and the Clinic employees lead to a conclusion of cause in fact as well as legal cause. But for their negligence, it was foreseeable that Joel would have become infected. Then, due to the infection, Joel contracted arachnoiditis and because of the arachnoiditis, Joel committed suicide. The fundamental rules of fault compel our rejection of Dr. Eubanks’ argument on this point.”
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