Court Upholds Big Verdict In Case Against Overland Park Pain Clinic And Doctor

May 27, 2016

The verdict against PainCare and Dr. Kimber Eubanks was the largest medical malpractice award in Johnson County in more than 25 years.
Credit Joe Gratz / Creative Commons-Flickr

A Kansas appeals court has upheld a jury award to the estate and parents of a 40-year-old man who took his life after a botched medical procedure left him with overwhelming spinal injuries.

The $2.88 million judgment in 2014 was the largest jury award in a Johnson County medical malpractice case in more than 25 years, according to local attorneys.  

In upholding the judgment, the Kansas Court of Appeals on Friday rejected the argument of the defendants, PainCARE of Overland Park and Dr. Kimber Eubanks, that the trial judge improperly instructed the jury it could find liability only if  negligence “caused” rather than merely “contributed to” Joel Burnette’s death.

“We hold that in wrongful death claims, one who contributes to a wrongful death is a cause of that death as contemplated by the wrongful death statute,” Judge Stephen D. Hill wrote on behalf of a three-judge panel.

“We reject any construction of the wrongful death statute to mean that only those who are the sole cause of a wrongful death can be pursued for damages under the wrongful death statute.”

Burnette had sought treatment at PainCARE for chronic lower back pain. During one of Burnette’s visits in January 2009, a physical therapist at the clinic noted an edema, or swelling, on his back. Despite that, Eubanks gave him an epidural steroid injection on the right side of his spine.

A week later, Burnette’s girlfriend brought him to the emergency room of Saint Luke’s Hospital. A lumbar puncture performed by one of the doctors produced green pus.

Burnette was diagnosed with meningitis caused by antibiotic-resistant MRSA bacteria. That developed into arachnoiditis, an incurable disease of the central nervous system. In time, the infection left him impotent, without control of his bladder or bowels and in excruciating pain.  

In December 2010 he sued PainCARE and Eubanks for medical malpractice, contending the epidural steroid injection administered by Eubanks had passed through his edema, which was infected, and caused the meningitis infection to spread.

A little more than two years later, before the case went to trial, Burnette took his life. A note he left with his parents said he “couldn’t live one more day with this pain.”

In March 2014, a Johnson County jury found Eubanks 75 percent at fault and the clinic 25 percent at fault. It awarded $2.06 million, including $1.46 million in noneconomic damages for pain and suffering, to Burnette’s estate, and $820,000 to his parents. Because Kansas caps noneconomic damages at $250,000, the $2.88 million total was reduced to $1.67 million.

In rejecting the defendants’ argument that Kansas’ wrongful death statute required the jury to find their negligence caused, rather than contributed to, Burnette’s death, the appeals court said it was being asked to reject 30 years of precedent.

“If we were to agree with them, it would mean, in a practical sense, that there could never be any recovery for a wrongful death when there are complex facts and several different forces are engaged in an incident that results in death. Accumulated wrongs can cause a death just as surely as one,” Hill wrote.

Scott E. Nutter, who represented the plaintiffs, said the defendants’ argument was “very novel.”

“I don’t use the word ‘frivolous’ lightly,” he said. “It was an argument, frankly, that would have required Kansas courts to overturn Kansas law. We never thought there was much merit to the argument.”

Attorneys for the Eubanks and the PainCARE could not be reached for comment.  

Dan Margolies, editor of the Heartland Health Monitor team, is based at KCUR. You can reach him on Twitter @DanMargolies.