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.

His mother saw it, his sister and his girlfriend saw it. They all worried about it.

But a pain doctor either overlooked any swelling or paid no heed to it when he gave Burnette a steroid injection, a Johnson County jury decided, and Burnette went on to develop meningitis and a painful and crippling nerve condition in his spine.

Vernon and Gail Burnette of Gladstone contended that the suffering their son endured caused him to take his own life in February 2013.

The jurors last month awarded the parents $2.88 million for Burnette’s suffering and wrongful death — the largest jury award in a Johnson County malpractice case in more than a quarter century.

“You don’t see many large awards out of that venue, especially for medical malpractice,” said Scott Nutter, an attorney for the Burnettes with the firm Shamberg, Johnson & Bergman. “The evidence was so compelling.”

Bruce Keplinger, attorney for the doctor, Kimber Eubanks, and his clinic, PainCARE, said the verdict would be appealed. Burnette had a history of psychiatric issues, and it was those, not his medical condition, that led to his suicide, Keplinger said.

“We were very disappointed, in fact, stunned (by the verdict),” he said. “It was contrary to all the medical facts.”

By all accounts, Burnette, 40, had been an active, fun-loving guy. He graduated from the University of Missouri with a degree in secondary education but had bounced from job to job, most recently working as manager of Charlie Hooper’s Brookside Bar & Grille. He swam, skied, bicycled and lifted weights.

But Burnette suffered chronic lower back pain that eventually took him to PainCARE, an Overland Park clinic operated by Eubanks and another physician, Daniel Bruning. Both are board certified in anesthesiology and pain management. And they are on a list of top Kansas City doctors published by 435 South magazine.

In May 2008, Bruning injected medication into Burnette’s back that alleviated his pain for a while. But Burnette was back that December for a second round of injections.

When those failed, he returned to PainCARE on Jan. 5, 2009. This time, Bruning was on vacation, so Eubanks attended to his treatment. He gave Burnette an epidural steroid injection in his lower back.

These injections into the area around the membrane surrounding the spinal cord are a common treatment for back and leg pain, said Dawood Sayed, a pain specialist at the University of Kansas Hospital.

“It’s probably one of the safest medical procedures done,” he said. “We’ve done thousands of them and haven’t seen one (infection).”

But such complications are possible, Sayed said. A patient’s skin has to be swabbed with an antiseptic before it’s pierced by the needle. Injections may be postponed if the patient has a fever or unhealed skin sores. A lump on the skin may be just a bruise, or it could be a sign of infection. Passing a needle through an infected area can spread the infection to the spine.

“If there’s any thought that it’s an infection, you avoid the lump,” Sayed said.

The injection Eubanks gave Burnette did nothing to relieve his pain. But soon after, the lump started to appear where the needle had gone in.

“He complained of pain there, and he would show me,” said Ellen Short, Burnette’s girlfriend at the time.

At a family gathering Jan. 11, 2009, for Burnette’s birthday, his mother and sister noticed the lump. “About that time, Joel and I started to wonder what it was,” Short said.

Short said Burnette was told by the clinic that it was normal to have some swelling at the injection site.

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.”

This story was originally published April 6, 2014 at 10:04 PM with the headline "Johnson County jury awards $2.88 million in malpractice case against pain clinic."