Burnette v. Eubanks, 112,429

Citation379 P.3d 372,52 Kan.App.2d 751
Decision Date27 May 2016
Docket NumberNo. 112,429,112,429
Parties Vernon A. Burnette and Gail Burnette, as the Heirs-at-Law of Vernon “Joel” Burnette, Deceased, and Vernon A. Burnette, as the Personal Representative of the Estate of Vernon “Joel” Burnette, Deceased, Appellees, v. Kimber L. Eubanks, M.D., and Paincare, P.A., Appellants.
CourtCourt of Appeals of Kansas

Steven C. Day and Christopher S. Cole, of Woodard, Hernandez, Roth & Day, LLC, of Wichita, and Bruce Keplinger and Christopher Lucas, of Norris & Keplinger, LLC, of Overland Park, for appellants.

John M. Parisi, Scott E. Nutter, and Daniel A. Singer, of Shamberg, Johnson & Bergman Chartered, of Kansas City, Missouri, and Michael W. Blanton, of Blanton Law Firm, of Evergreen, Colorado, for appellees.

Before Gardner, P.J., Hill and Powell, JJ.

HILL

, J.:

In the third year of the pendency of his medical malpractice lawsuit, Joel Burnette killed himself. His heirs and his estate are now pursuing a wrongful death claim. They received a money judgment after a jury found a doctor, Kimber Eubanks, M.D., and a clinic, PainCARE, P.A., negligent.

The doctor and the Clinic appeal, contending the trial court improperly instructed the jury because its causation instruction said: “A party is at fault when he or she is negligent and that negligence caused or contributed to the event which brought about the claim(s) for damages.” In their view, this instruction is erroneous when applied to wrongful death cases because the statute authorizing wrongful death claims only states “caused” and does not use the phrase “contributed to.”

Recovery for negligence in Kansas is governed by principles of comparative negligence. 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. 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.

We must also address questions of the admissibility of certain opinion evidence and the request for a certain type of damage. Additionally, we examine the propriety of allowing an exhibit to be taken back with the jury during its deliberations and a brief reference to insurance made during the voir dire examination of potential jurors. In the end, we affirm.

Joel sought relief at a pain clinic.

In May 2008, Vernon “Joel” Burnette sought treatment at PainCARE, P.A., for his chronic lower back pain. We will refer to The PainCARE, P.A., as the Clinic. Subsequently, Dr. Daniel Bruning treated Joel with steroid injections to the facet joints

on the right side of Joel's back at several thoracic and lumbar vertebrae. Dr. Bruning saw Joel again on December 15, 2008, where he performed additional facet joint injections on the right side, together with a piriformis muscle injection.

A little over a month later, Joel returned to the Clinic. This time Dr. Kimber Eubanks performed an epidural steroid injection and bilateral trochanteric bursa injections in the L5–S1 area.

On January 12, 2009, Erich Helfer, a physical therapist at the Clinic, performed a physical therapy assessment on Joel. Helfer's notes indicated the presence of kyphosis

and edema on Joel's back between the L4 and S1 vertebrae. Kyphosis is a change in the bony alignment of the spine itself. Edema means swelling or fluid retention in a certain region of the body and can indicate the possibility of an infection. The next day, Joel returned to see Dr. Eubanks at the Clinic. Dr. Eubanks performed an L5–S1 epidural steroid injection on the right side of Joel's spine.

Just a week later, on January 21, 2009, Joel went to the emergency room at St. Luke's Hospital suffering from fever, headache, and a stiff neck. Dr. Sarah Linderman performed a lumbar puncture

seeking a spinal fluid specimen, which produced green, cloudy puss. Evidently, the epidural steroid injection to Joel's back had passed through the edema, which was infected, causing the infection to spread. As a result, Joel contracted bacterial meningitis— an inflammation of the meninges covering the spinal cord. This developed into arachnoiditis

, an incurable disease of the central nervous system. The arachnoiditis caused many problems for Joel. He suffered from pain, and he had problems with his balance, bowel function, gait, and walking. It produced dizziness, fatigue, and sexual dysfunction.

Joel seeks legal compensation.

In December 2010, Joel filed a medical negligence claim against Dr. Eubanks, Dr. Bruning, and the Clinic alleging that the negligent treatment by all three caused his injuries and damages. Dr. Bruning was later dismissed from the lawsuit.

Joel's negligence claims can be condensed into two theories. Dr. Eubanks was negligent by giving Joel a lumbar steroid injection despite signs and symptoms of a localized infection. By pushing the needle through the infection and beneath the dura, the infection was spread into Joel's spinal fluid and resulted in arachnoiditis

. The Clinic was liable through the negligence of its employee, Erich Helfer, the therapist who was negligent when he failed to report to Dr. Eubanks the presence of kyphosis and edema on Joel's back. Also, the nursing staff failed to note Joel's reports of a raised or swollen area on his lower back.

As the case slowly progressed, Joel committed suicide on February 12, 2013. He left a note to his parents, which revealed that he was taking his life because he “couldn't live one more day with this pain.” Joel further stated, “I tried. So damn hard. I tried. For three long years I tried. And now, I'm tired. So tired. Tired of the pain. Tired of the frustration. Tired of failing. Tired. So very, very tired.”

Eventually, the trial court substituted Joel's heirs—his parents—Vernon and Gail Burnette, and his estate as successor plaintiffs in the lawsuit. They, in turn, filed an amended petition asserting a wrongful death claim, contending that Joel committed suicide due to pain associated with the arachnoiditis

he suffered following the substandard treatment by Dr. Eubanks and the Clinic.

Before trial, Helfer, the therapist at the Clinic, acknowledged during his deposition that notes of his January 12, 2009, treatment of Joel, which he considered accurate, indicated the presence of an area of kyphosis

and edema on Joel's back between the L4 and S1 vertebrae. On an anatomical drawing of the back, marked as deposition exhibit 5, Helfer drew two circles in the L4–S1 areas in which he observed kyphosis and edema on Joel's back. Defense counsel objected on the basis of speculation but clarified that to the extent the markings were an “approximation” there was no objection. When asked, Helfer described a red circle he had marked on Exhibit 5 as “the circle where I, based on the evaluation, saw the edema between L4 and S1.” Helfer clarified that he remembered the edema on Joel's back was located between L4 and S1 in terms of the upper and lower limits of Joel's spine, but he did not recall its location laterally and the circle he had drawn on Exhibit 5 depicting the area of edema was a “general approximation.”

We recount some pertinent trial events.

Dr. Eubanks and the Clinic sought to exclude Exhibit 5 from Helfer's deposition from admission into evidence at trial on the basis that the markings on Exhibit 5 were based solely upon Helfer's review of his notes, not upon his independent recollection. Helfer had admitted the marks he made might not have accurately shown how far the edema extended laterally. The district court denied the motion to exclude Exhibit 5, finding that it was not improper for Helfer to rely on his notes to mark on the drawing and that any argument regarding how far the edema extended laterally was an argument for the jury.

During voir dire questioning, a prospective juror made an unsolicited comment regarding insurance. Defense counsel moved to strike the entire venire panel. The district court removed the prospective juror, gave a limiting instruction, and denied the motion to strike the panel. When Helfer testified at trial, Exhibit 5 from Helfer's deposition was marked as Plaintiffs' Exhibit 114 and admitted over defense counsel's objection. Plaintiffs' Exhibit 114 was displayed during trial and allowed to go to the jury room during the jury's deliberations.

The jury returned a verdict finding for the Burnettes on liability, assessing 75 percent of the fault to Dr. Eubanks and 25 percent to the Clinic. No fault was attributed to Joel. The jury awarded total damages of $2,060,317.84 (medical expenses: $465,757.84; economic loss [lost income]: $134,560; noneconomic loss: $1,460,000) to Joel's estate, and $820,062 (past loss [of] attention, care, and loss of a complete family: $50,000; future loss of attention, care, and loss of a complete family: $500,000; funeral expenses: $20,062; past noneconomic loss: $50,000; future noneconomic loss: $200,000) in total damages to the Burnettes.

After applying the $250,000 statutory damage cap under K.S.A. 60–19a02(d)

to the jury's award of $1,460,000 for the noneconomic loss suffered by Joel's estate, the district court entered judgment in favor of Joel's estate against Dr. Eubanks for $637,738.38 and against the Clinic for $212,579.46. The district court entered judgment in favor of the Burnettes against Dr. Eubanks for $615,046.50 and against the Clinic for $205,015.50.

We reject the claim that one who contributes to a wrongful death is not liable for that death.

Dr. Eubanks and the Clinic contend that the trial court must be reversed because it instructed the jury in this case that a party is at fault when he or she is negligent and that negligence caused or contributed to the event which brought about the claims for damages.” In their view, that statement of the law is inaccurate when dealing with wrongful death actions. They base their argument on K.S.A. 2015 Supp. 60–1901(a)

. It simply states:

“If the death of a
...

To continue reading

Request your trial
3 cases
  • Platt v. Kan. State Univ.
    • United States
    • Kansas Supreme Court
    • September 16, 2016
  • Burnette v. Eubanks
    • United States
    • Kansas Supreme Court
    • August 24, 2018
    ...which would subject them to the statutory cap under K.S.A. 60-1903. A Court of Appeals panel affirmed. Burnette v. Eubanks , 52 Kan. App. 2d 751, 779, 379 P.3d 372 (2016).We hold the jury instructions on causation were legally and factually appropriate, so there was no error. And based on t......
  • Holmes v. Krug
    • United States
    • U.S. District Court — District of Kansas
    • March 15, 2017
    ...she no doubt suffered. Yet, under Kansas law evidence of such companionship can give rise to an inference of pecuniary damages.40 In Burnette v. Eubanks ,41 the Kansas Court of Appeals found that the plaintiff had presented evidence of pecuniary damages in a case similar to this one.Here, t......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT