On May 27, 2016, the Kansas Court of Appeals (“Kansas Appellate Court”) affirmed the judgments entered in favor of the parents of a man who had committed suicide, and in favor of their son’s estate, against a physician and against a pain clinic, stating, “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.”
The Underlying Facts
In May 2008, the son sought treatment for his chronic lower back problem at the defendant pain clinic. On December 15, 2008, the man underwent additional facet joint injections on his right side, along with a piriformis muscle injection, at the defendant pain clinic. A little over a month later, the man received an epidural steroid injection and bilateral trochanteric bursa injections in the L5-S1 area, at the defendant pain clinic.
On January 12, 2009, a physical therapist at the defendant pain clinic performed a physical therapy assessment on the man and noted the presence of kyphosis and edema on the man’s back between the L4 and S1 vertebrae. On January 13, 2009, the man had an L5-S1 epidural steroid injection on the right side of his spine performed at the defendant pain clinic.
On January 21, 2009, the man went to the emergency room of a local hospital complaining of a fever, headache, and a stiff neck. A lumbar puncture produced green, cloudy puss. Evidently, the epidural steroid injection to the man’s back had passed through the edema, which was infected, causing the infection to spread. As a result, the man contracted bacterial meningitis that developed into arachnoiditis, leading to pain and problems with the man’s balance, bowel function, gait, and walking, and caused dizziness, fatigue, and sexual dysfunction.
In December 2010, the man filed a Kansas medical negligence claim against the defendant pain clinic and two of its doctors. The man committed suicide on February 12, 2013, leaving a note to his parents that stated that he was taking his life because he “couldn’t live one more day with this pain. 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.”
The man’s parents were substituted as plaintiffs in the man’s Kansas medical malpractice lawsuit and they amended the complaint to include a wrongful death action against the defendants, contending that their son committed suicide due to pain associated with the arachnoiditis he suffered following the substandard treatment by the defendants.
The Kansas medical malpractice wrongful death jury returned its verdict in favor of the plaintiffs on liability, assessing 75% of the fault to the defendant doctor and 25% to the defendant pain clinic – no fault was attributed to the man. The jury awarded total damages of $2,060,317.84, including noneconomic loss in the amount of $1,460,000 to the man’s estate, and awarded additional damages to the parents.
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 the man’s estate, the trial court entered judgment in favor of the man’s estate against the defendant doctor for $637,738.38 and against the defendant pain clinic for $212,579.46. The trial court also entered judgment in favor of the parents against the defendant doctor for $615,046.50 and against the defendant pain clinic for $205,015.50.
The defendants appealed, arguing, among other alleged errors, that the jury instruction regarding wrongful death was wrong because the wrongful death statute limits liability only to those who cause a wrongful death and does not extend to those who contribute to the death.
The Kansas Appellate Court stated that Kansas’ comparative negligence statute (K.S.A. 2015 Supp. 60-258a(a)) shows that the legislature intended that wrongful death recovery should be governed by comparative fault principles, and the only bar to recovery that remains is if the decedent’s negligence is greater than the causal negligence of the other parties to the incident that resulted in the death. Otherwise, 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; otherwise, if several people contribute to a wrongful death, none would be legally responsible because they could not be the sole cause of death, even though all contributed to the death.
The Kansas Appellate Court stated, “We must interpret the wrongful death statute and those dealing with comparative negligence with a view of making them work in harmony in order to achieve the goals of both pieces of legislation … We hold that a contributing cause is a cause as the term is used in the wrongful death statute, K.S.A. 60-1901. In other words, if 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.”
Source Burnette v. Eubanks, No. 112429.
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