Burnette v. Eubanks
| Decision Date | 24 August 2018 |
| Docket Number | No. 112,429,112,429 |
| Citation | 425 P.3d 343 |
| 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. |
| Court | Kansas Supreme Court |
Steven C. Day, of Woodard, Hernandez, Roth & Day, LLC, of Wichita, argued the cause, and Christopher S. Cole, of the same firm, and Bruce Keplinger and Christopher Lucas, of Norris & Keplinger, LLC, of Overland Park, were with him on the briefs for appellants.
Michael W. Blanton, of Blanton Law Firm, of Evergreen, Colorado, argued the cause, and Scott E. Nutter, John M. Parisi, and Daniel A. Singer, of Shamberg, Johnson & Bergman, Chartered, of Kansas City, Missouri, were with him on the briefs for appellees.
Kimber L. Eubanks, M.D., and PainCARE, P.A., appeal from a jury verdict finding them liable for medical malpractice after a patient committed suicide. The lawsuit alleges Vernon "Joel" Burnette contracted bacterial meningitis from lumbar epidural steroid injections administered through an infected lump in 2009. Joel developed arachnoiditis, a severe pain disorder caused by inflammation of a membrane protecting spinal cord nerves. This pain led Joel to suicide in 2013. On appeal, defendants challenge the causal link between their medical treatment and the suicide. They also contest $550,000 in wrongful death economic damages awarded to Joel's parents.
Defendants argue: (1) the jury instructions were wrong because they did not expressly require their medical malpractice to be a "but-for" cause of Joel's suicide; (2) the expert testimony was legally insufficient to establish their negligence caused Joel's suicide; and (3) the trial court improperly permitted the jury to consider as economic damages the parent's claim for "[l]oss of attention, care, and loss of a complete family," rather than considering those losses noneconomic, 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 the reasoning used to resolve the jury instruction causation issue, we hold the expert testimony was legally sufficient because it described the causal link between defendants' negligence and Joel's suicide in harmony with those instructions.
We reverse the $550,000 awarded as economic damages for "[l]oss of attention, care, and loss of a complete family." The evidence supporting these losses impermissibly distorted the distinction between economic and noneconomic damages. Economic losses possess a tangible quality for which a plaintiff is entitled to the jury's valuation essentially as replacement for the loss. See McCart v. Muir , 230 Kan. 618, 626, 641 P.2d 384 (1982) (). And while each case has nuanced circumstances, an item identified as an economic loss must be capable of being valued using either expert testimony or the jury's common-sense understanding about what an item of actual loss costs in the marketplace. See Wentling v. Medical Anesthesia Services , 237 Kan. 503, 514-15, 701 P.2d 939 (1985). The evidence failed this established standard.
We affirm the jury's verdict on the causation issues, but reverse and vacate the disputed $550,000 monetary award. We remand the case to the district court for entry of judgment consistent with this decision.
Before his death, Joel sued Eubanks, Daniel Bruning, M.D., and their clinic, PainCARE, P.A., alleging negligence in administering epidural steroid injections for back pain. Joel claimed he told the clinic's nursing staff and Eubanks about a painful lump on his back, but Eubanks dismissed the concern and gave him an injection through the infected lump—failing to diagnose and medically treat his spinal epidural abscess. From this, Joel claimed he developed spinal meningitis, significant permanent nerve damage, and arachnoiditis. About four years after the injection, Joel committed suicide.
Joel left his parents a note explaining he "couldn't live one more day with this pain." He wrote,
Joel's parents, Vernon and Gail Burnette, filed a wrongful death claim against Eubanks and PainCARE based on the new cause of action arising from the suicide. They continued with Joel's original lawsuit as a "survival" action on behalf of his estate. See K.S.A. 60-1801 (). The district court consolidated the lawsuits. A jury found Eubanks and PainCARE at fault for Joel's injuries and death.
On the personal injury claim, the jury awarded Joel's estate $2,060,317.84, including $1,460,000 in noneconomic damages. Those noneconomic damages were reduced to $250,000 by court order. See K.S.A. 60-19a02 (). On the wrongful death claim, the jury awarded Joel's parents $820,062. This included funeral expenses and an additional $550,000 as economic damages, which were not subject to a noneconomic damages cap in wrongful death actions. See K.S.A. 60-1903. The $550,000 economic award was itemized on the verdict form as "[l]oss of attention, care, and loss of a complete family." Defendants appealed. A Court of Appeals panel affirmed. Burnette, 52 Kan. App. 2d at 779, 379 P.3d 372.
Defendants timely filed a petition for review with this court, which we granted. Jurisdiction is proper. See K.S.A. 20-3018(b) (); K.S.A. 60-2101(b) ().
We consider first whether the jury instructions improperly diluted the legally necessary causal link between defendants' conduct and Joel's suicide. The panel succinctly described the chain of events: 52 Kan. App. 2d at 762, 379 P.3d 372.
To recover damages on a medical malpractice theory, a plaintiff must show:
Our attention is on that fourth element. Proximate cause is the cause that " ‘ "in natural and continuous sequence, unbroken by an efficient intervening cause, produces the injury and without which the injury would not have occurred, the injury being the natural and probable consequence of the wrongful act." ’ " Yount v. Deibert , 282 Kan. 619, 624-25, 147 P.3d 1065 (2006). Individuals are not responsible for all possible consequences arising from their negligence—just those that are probable according to ordinary and usual experience. Hale v. Brown , 287 Kan. 320, 322, 197 P.3d 438 (2008).
Defendants argue they can be liable only if Joel's suicide would not have occurred without their negligent conduct, i.e., but-for causation. They claim the jury instructions failed to ensure this.
From defendants' perspective, the culprit is Jury Instruction No. 11, which stated: "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 for damages." (Emphasis added.) Defendants contend the italicized language permitted the jury to find liability without making the legally required causal connection between their negligence and Joel's suicide nearly four years later. To resolve this, we must decide whether an actor's conduct that "contributes to" an event that brings about the claim is the same as a "but-for" cause of a plaintiff's injuries.
We consider jury instructions together and read them as a whole. Puckett v. Mt. Carmel Regional Med. Center , 290 Kan. 406, 437, 228 P.3d 1048 (2010). And as discussed below, when taken as a whole, the instructions correctly supply the cause-in-fact requirement under Kansas law. Instruction No. 11, which is the centerpiece for this question, permitted the jury to find a defendant at fault only if that defendant's negligence "caused or contributed to the event which brought about the claim for damages ." (Emphasis added.) If the jury believed Joel's suicide would have occurred without a defendant's negligence, i.e., the negligence did not have a share in producing Joel's death, the instructions required the jury to find no fault as to that defendant. In other words, to impose liability for Joel's suicide under Instruction No. 11, the jury would have to have found a defendant's negligence was a "but-for" cause of his death. This, coupled with the other instructions, correctly stated the law and appropriately communicated to the jury the test to be applied.
The district court provided two other relevant instructions. Instruction No. 12 stated:
To continue reading
Request your trial
-
Castleberry v. Debrot
...on the safe side" was improper and, if so, whether that requires reversal.As to the instructions, we adhere to our holding in Burnette v. Eubanks , 308 Kan. ––––, Syl. ¶ 3, 425 P.3d 343 (this day decided) ("Any perceived distinction between the phrases ‘causing an event’ and ‘contributing t......
-
State v. Robison
...position they found themselves in prior to a defendant's commission of the offense that caused the injury or damage."), with Burnette v. Eubanks , 308 Kan. 838, Syl. ¶ 4, 425 P.3d 343 (2018) ("The purpose in awarding damages is to make a party whole by restoring that party to the position t......
-
Doull v. Foster
...1052, 1 Cal.Rptr.2d 913, 819 P.2d 872 (1991) ("the ‘substantial factor’ test subsumes the ‘but for’ test"); Burnette v. Eubanks, 308 Kan. 838, 850-851, 425 P.3d 343 (2018) ("An act of negligence which contributes to an accident must, of necessity, have at least a part in causing the acciden......
-
Acord v. Porter
...a health care provider breached the appropriate standard of care but also that the breach caused the injury or damage claimed. Burnette v. Eubanks , 308 Kan. 838, Syl. ¶ 1, 425 P.3d 343 (2018). "Except where the lack of reasonable care or the existence of proximate cause is apparent to the ......