Warner Law Offices In the News
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Kansas Supreme Court Strikes Down Cap in Injury Cases
By The Associated Press
June 14, 2019
TOPEKA, Kan. — The Kansas Supreme Court on Friday ruled that the state's cap on damages for noneconomic injuries in personal injury lawsuits is unconstitutional.
The court ruled 4-2 that capping damages an injured person is able to recover in a lawsuit violates that person's right to a jury trial. The decision does not apply to wrongful death cases or to punitive damages, which are rare in Kansas.
Opponents of the damages caps say they limit the ability to recover compensation after a jury has ruled for the plaintiff. Supporters say damages caps hold down insurance costs for the public and safeguard against "runaway juries" that award huge verdicts.
Kansas business groups decried the ruling, saying it would lead to higher insurance costs for all Kansans and put state businesses' at an economic disadvantage, while attorneys said it would give the right to decide damages back to juries.
Democratic Gov. Laura Kelly said she needed to review the decision before commenting.
Justice Carol Beier wrote that the cap's effect is to "disturb the jury's finding of fact on the amount of the award."
"Allowing this substitutes the Legislature's nonspecific judgment for the jury's specific judgment. The people deprived the Legislature of that power when they made the right to trial by jury inviolate," wrote Beier, whose opinion was backed by two other justices. Caleb Stegall, who may be the court's most conservative justice, wrote a concurring opinion that cited different reasons.
The decision comes in a case filed by Diana Hilburn, who was injured in a 2010 accident when a semi-trailer hit a car she was riding in. A jury awarded Hilburn $33,490 for medical expenses and $301,509 for noneconomic losses. She appealed when the jury's noneconomic damages were capped at $250,000, which was the statutory limit at the time. Currently, caps for noneconomic injuries are $325,000.
"We need to let juries decide damages rather than politicians," Hilburn's lawyer, Thomas Warner, told The Kansas City Star.
State Sen. Rick Wilborn, a Republican from McPherson and the chairman of the Senate Judiciary Committee, said it was too soon to predict how the Legislature would respond to the ruling.
"Those caps were put on years ago to control costs in the insurance arena, to put some predictability back in insurance rates," Wilborn said. "And any time you add to loss cost, you can anticipate in time as the awards mount that insurance rates will increase. It's that simple."
Jon Rosell, the executive director of the Kansas Medical Society, said the group believes the ruling also strikes down caps on noneconomic damages in medical malpractice cases and will likely increase doctors' insurance costs, with those increases ultimately passed on to consumers.
Higher medical malpractice insurance premiums might make it too expensive for some doctors to practice in rural areas, he said.
"We think that this decision begins a series of dominos that will fall where ultimately the Kansas patient will be impacted," he said.
The Kansas Chamber of Commerce said in a statement that it believes the ruling will mean Kansans could face higher insurance costs, more uninsured defendants and fewer economic opportunities. It predicted that the ruling could force Kansas businesses to close and lay off employees "because of one frivolous lawsuit."
"On behalf of its members and tens of thousands of employees, the Kansas Chamber calls on the Kansas Legislature to not let this decision stand unchallenged," CEO and president Alan Cobb said in the statement. "To do so, would once again be ceding its responsibilities to another state branch of government."
The Legislature imposed the caps in the 1980s because it feared liability insurance was too costly and, Rosell said, "Now it appears that we'll be returning back to that era.
David Morantz, a personal injury attorney for the Kansas City law firm of Shamberg, Johnson & Bergman, said damages for such things as loss of wages and medical expenses can be calculated but noneconomic injuries such as loss of enjoyment of life or disfigurement are more difficult to determine, which is often why people seek help in the courts.
"Now, with this, the noneconomic damages are whatever the jury says they are, and that's how the law should be," he said.
Kansas Supreme Court Decision Eliminates Cap For Pain & Suffering Awards
The Kansas Supreme Court today published a decision which eliminates the maximum amount that can be awarded in legal cases to people for noneconomic damages, which are often referred to as pain and suffering.
“This change is long overdue,” said Kansas attorney Thomas M. Warner Jr. of Warner Law Offices. “Now, people who sustain serious injuries in an accident due to someone else’s reckless or negligent behavior will finally be able to get the money they deserve. Just as important, such financial awards will send a strong, clear message to the corporations or individuals responsible for such injuries that their behavior will not be tolerated.”
Attorney Warner successfully argued the case before the Kansas Supreme Court on behalf of his client, Diana K. Hilburn, who was injured in a car accident in November 2010 caused by the negligent actions of a truck driver working for Enerpipe Ltd.
The Supreme Court of the State of Kansas published its opinion on June 14 in relation to case number 112,765, Diana K. Hilburn, Appellant vs. Enerpipe Ltd., Appelle. The court reversed a district court decision, which upheld the existing law.
In its opinion, the Kansas Supreme Court wrote, “The “noneconomic damages cap under K.S.A. 60-19a02 violates the right protected by section 5” of the Kansas Constitutional Bill of Rights “because it intrudes upon the jury’s determination of the compensation owed personal injury plaintiffs to redress their injuries.”
Before today’s ruling, the maximum amount juries could award someone injured in an accident due to someone else’s reckless or negligent actions was $325,000 under Kansas law. That amount was set to increase to $350,000 on July 1, 2022. Now, juries have the freedom to choose how much to award in noneconomic damages, often referred to as pain and suffering.
“Today’s victory is a victory for everyone in Kansas,” Warner said. “In particular, corporations will make sure that safety comes first when it comes to protecting the lives of people in Kansas.”
Thomas M. Warner, Jr., Esq. Elected President of Kansas Trial Lawyers Association
Thomas M. Warner, Jr., Esq. of Warner Law Offices, PA in Wichita, KS was elected president of the Kansas Trial Lawyers Association for 2018-2019.
KTLA is a statewide, non-profit organization dedicated to championing the rights of trial lawyers and everyone’s right to a trial by jury and maintaining high ethical standards for the legal profession. KTLA was founded in 1951 by trial attorneys throughout the state of Kansas. Members of the Topeka-based organization provide support, education and other resources for trial attorneys throughout Kansas.
Mr. Warner thanked his fellow KTLA members for electing him president. “I have been a member of KTLA for my entire legal career, so it is truly an honor to lead this organization that has played a big role in my professional life over many years.”
As president, Mr. Warner vowed to continue KTLA’s fight for preserving people’s right to a jury trial and the right to seek fair compensation. “Recently, damage caps have been challenged in the courts which resulted in the legislature increasing the amount of the cap for the first time since the original caps were passed in the mid ‘80s,” Warner wrote recently in the Journal of the Kansas Trial Lawyers Association.
“It’s been over 30 years since the attack on torts began,” Warner added. “Now is the time to fully restore the right to jury trial and right to remedy in Kansas STAT,” an acronym for “Stop The Attack on Torts.”
Mr. Warner’s complete comments on being elected president of KTLA can be found in the latest issues of the Journal of the Kansas Trial Lawyers Association.
Thomas M. Warner, Jr., Esq. Inducted into the International Academy of Trial Lawyers
Thomas M. Warner, Jr., Esq. of Warner Law Offices, PA in Wichita, KS was recently inducted into the International Academy of Trial Lawyers (IATL) at their Mid-Year Meeting held July 26-29, 2017.
The International Academy of Trial Lawyers limits membership to 500 Fellows from the United States. The Academy seeks out, identifies, acknowledges and honors those who have achieved a career of excellence through demonstrated skill and ability in jury trials, trials before the court and appellate practice. Members are engaged in civil practice on both the plaintiff’s and the defendant’s side of the courtroom, and the trial of criminal cases. The Academy invites only lawyers who have attained the highest level of advocacy. A comprehensive screening process identifies the most distinguished members of the trial bar by means of both peer and judicial review. Mr. Warner has been evaluated by his colleagues and the judges in his jurisdiction and has been highly recommended by them as possessing these qualifications and characteristics.
Chartered in 1954, the Academy’s general purposes are to cultivate the science of jurisprudence, promote reforms in the law, facilitate the Administration of Justice, and elevate the standards of integrity, honor and courtesy in the legal profession.
Wichita school district considers $500,000 settlement in lawsuit alleging student's chemical burns
By Suzanne Perez Tobias
01/24/2014 9:04 AM
01/24/2014 2:58 PM
Read more here: http://www.kansas.com/news/article1132426.html#storylink=cpy
The Wichita school district is considering a $500,000 lawsuit settlement to a student who allegedly was burned by a chemical cleaning solvent in a bathroom at Kelly Elementary School in 2009.
The proposed settlement would be the largest by the district in at least 20 years, officials said.
According to court documents, Ethan Belcher was a first-grader at Kelly Elementary in 2009 when he went into a bathroom stall and lowered his pants to use a urinal. His pants and undergarments soaked up a liquid that had pooled onto the floor, the lawsuit says. After pulling up his pants and returning to his classroom, Ethan "began complaining of burning and stinging" in the area of his left hip, the lawsuit says.
The lawsuit, filed in July by Ethan and his mother, Marsha Smith, names the school district and former school nurse Cynthia Ann Thomas. It alleges that the boy's teacher sent him to the nurse, who "did not examine the area. ... Instead, she gave (the student) an ice pack and sent him back to his classroom."
After Ethan's symptoms worsened, his teacher carried him back to the nurse's office, the lawsuit says. Thomas then looked at the boy's hip and discovered a wound about 5 inches by 4 inches.
Doctors at Via Christi Regional Medical Center later determined that Ethan "had been exposed to an alkaline chemical that caused a third degree chemical burn," the lawsuit says. According to the suit, the wound grew and Ethan spent one month in the burn unit at Via Christi-St. Francis in early 2009, undergoing multiple surgeries and major skin grafting.
The suit alleges the district was negligent in allowing caustic chemicals to pool in the restroom and "further negligent in failing to properly train its agents and employees on what to do in the event a child comes into contact with ... hazardous chemicals."
Tom Warner, the Wichita attorney representing the boy and his mother, said the proposed settlement - the maximum allowed against a government body under the Kansas Tort Claims Act - is warranted and should serve as a warning to families.
"I think this case demonstrates that there are dangers lurking in our schools that probably most families are unaware of," Warner said Friday.
"When we send our children to school, we assume that any dangerous chemicals that are used at the school are safely used by people who are properly trained to use them."
Warner said Ethan, now a sixth-grader in the Haysville district, was traumatized and permanently scarred by the injury. Experts said during depositions that the delay in treatment likely worsened the boy's injuries.
"This kid went through hell," Warner said.
Wendy Johnson, a spokeswoman for the Wichita district, said the case "was an unfortunate and isolated occurrence."
"Since that time, we have continued to emphasize established procedures and practices from both a nursing as well as a custodial standpoint," Johnson said in an e-mail.
She would not comment further, citing student privacy laws and the confidential nature of personnel files.
"We believe that settling this case is the most appropriate action to take at this time," Johnson said.
According to documents filed as part of the lawsuit, the cleaning agent that soaked into the boy's pants was a general-purpose disinfectant called Pine Destroyer. The product label calls for the cleaner to be diluted - 2 to 3 ounces of solution per gallon of water - but the liquid on the school's bathroom floor was undiluted, Warner said.
According to Tim Phares, the district's director of environmental services, Pine Destroyer is "being phased out" in Wichita schools because new chemical dilution systems require a different product.
"Custodians have been, and will continue to be, trained on chemical dilution and chemical safety on an ongoing basis," Phares said in an e-mail.
Thomas, the former school nurse, said she no longer is employed by the district. She would not comment further about the case.
According to district records, Thomas worked in Wichita schools from August 1990 until she retired in August 2009.
Smith said her son, 11, is "OK now, but pretty scarred."
She sought the lawsuit "for other kids' safety," Smith said.
"I just believe everybody should know about it, and maybe it will encourage them (the district) to take safer steps to make sure that this kind of stuff doesn't happen to any other kid."
The Wichita school board on Monday will vote whether to authorize the $500,000 settlement. The district would pay up to $75,000, and the district's insurance companies would pay the rest, according to district documents.
A settlement hearing is set for Feb. 14.
If approved, the settlement would be the largest in decades by the district. In 2005, the district paid $365,000 to settle a suit filed by a woman who alleged that a former Truesdell Middle School teacher raped her.
Editorial: Board of Healing Arts must toughen standards
January 03, 2014
By The Capital-Journal
Read more here: http://m.cjonline.com/opinion/2014-01-03/editorial-board-healing-arts-must-toughen-standards#gsc.tab=0
People who check themselves into a hospital for surgery do so knowing there are risks involved and that not all surgeries deliver the desired result. But they assume those risks, after assessing their medical condition and needs, with the assumption a competent surgeon will be performing the operation.
Fortunately, that is the case the vast majority of the time.
Unfortunately, some people find their way to a physician who has a history of problems unbeknownst to his or her patients, who put their faith in a specialist they really know very little about.
It is the job of the Kansas Board of Healing Arts to respond to reports, or complaints, about physicians and deal with them in a manner that ensures the state's citizens are being treated by qualified and capable professionals.
The history of an orthopedic specialist who has been practicing in Kansas since 1996 is enough to make anyone question whether the Board of Healing Arts has set its standards high enough to protect patients or is paying attention to all the information it receives, or should be receiving.
The physician, whose history was reviewed in a story published recently in The Topeka Capital-Journal and at CJOnline.com, has a long, and documented, history of alcohol and drug problems. He also is the subject of multiple, active malpractice lawsuits.
Granted, the filing of a malpractice suit is not evidence of actual malpractice. But enough of the orthopedic specialist's surgical work has required repair by other physicians to indicate there was reason for concern. The Board of Healing Arts actually issued an emergency suspension of the physician in 2011 following a report he exhibited erratic behavior and declined to submit to a drug test. He once again, however, is practicing and is considered in good standing with the Board of Healing Arts.
Kansas is preparing to initiate a drug testing program for welfare recipients under which their benefits can be lost for a period of time if they fail or decline a test. Multiple failures could result in a permanent loss of benefits.
But in Kansas, a physician who has a history of drug abuse dating back to 1985 and declines a drug test need only sit on the sidelines for a year before being returned to good standing with the Board of Healing Arts.
That board might want to consider raising its standards.
Wichita surgeon rehabilitating career scarred by drugs, alcohol
December 30, 2013
By Tim Carpenter
Read more here: http://cjonline.com/node/169092/topics/professional/mlb/topics/professional/mlb/royals
WICHITA - Kolten Weaver is 5-foot-5 and a bit over 110 pounds, and as a teenager, filled out a calendar punctuated by pursuits ranging from wrestling, swimming and skating to hunting and riding motorcycles.
"He was the kind of kid that you couldn't get grass to grow under his feet," said his mother, Greta Short.
Weaver, of Mount Hope, also had Scheuermann's kyphosis - a disease of mysterious origin that propels uneven growth, or wedging, of vertebrae. The process bends the spine in the thoracic area to create a rigid arc. This hunchback condition is notorious for causing neck, back and leg strain. The deformity applies unhealthy pressure on internal organs.
Weaver turned in 2010 to Wichita orthopedic specialist Kris Lewonowski, who has practiced in Kansas since 1996, to determine if anything could be done.
His family didn't know Lewonowski harbored secrets, which the Kansas Board of Healing Arts helps to conceal, of a career dotted with drug and alcohol abuse. If such information had been available to the public, several former patients said, they would have saved themselves pain and spared Lewonowski malpractice lawsuits.
"The Board of Healing Arts hides from the public any information that the public needs to know about doctors in whom they're placing their lives," said Hutchinson attorney Matthew Bretz, who filed a suit against Lewonowski. "Don't get me wrong. There are a lot of good doctors out there. But there are also some drug addicts out there. The Board of Healing Arts just doesn't protect the public from people like that."
Lewonowski said during an interview Monday that he had never jeopardized the welfare of a patient through substance abuse.
"Never have I been under the influence around a patient, in the hospital, in the clinic or in the operating room," he said.
His attorney, Brian Wright, of Great Bend, said Lewonowski was among the "most monitored physician that there is in the state."
Spinal fusion, 26 screws
During Weaver's second visit to Lewonowski's clinical office, the physician recommended invasive surgery based on the notion conservative treatment common for children - braces and physical therapy - would be of little benefit because Weaver's spine had stopped growing.
He proposed an 11-level spinal fusion and insertion of metal instruments to hold the alignment. The strategy was to implant vertical rods on the sides of the spine and secure horizontal bars and hooks. Twenty-six screws would be drilled into bone.
"He said that by the next summer, I would be out jet skiing again," Weaver said.
Surgery occurred May 26, 2010, at Via Christi Hospital in Wichita. Lewonowski surprised Short moments before the operation by explaining he had been up all night studying material on performing bone fusions with stem cells rather than with grafts. The doctor declared intent to tackle the stem cell option, she recalled, despite his assertion Weaver's insurance company would be appalled by the cost.
"He was very erratic," Short said. "Like he had drank three pounds of Folgers coffee."
The operation took several hours more than anticipated, but Lewonowski emerged confident in the result.
"Things went pretty good," the doctor said later in a deposition tied to a lawsuit. "I bet I was pleased."
Weaver said events of the past three and a half years made him regret placing faith in Lewonowski's expertise. The post-operative phase of his life was challenging from the start. In ICU after surgery, Kolten stopped breathing.
"This kid was as white as the sheet he was lying on," his mother said. When he woke the next day, the pain was alarming. "He looked over at me and screamed: 'I'm done. Take me home. I don't want to do this anymore.' "
At a checkup following the operation, testing suggested a metal screw placed in one of Weaver's vertebrae might be protruding in proximity to a lung. Lewonowski assured them misplacement of the screw was inconsequential.
"The Kolten Weaver case - a misplaced pedicle screw," Lewonowski said in the interview. "Those things happen 15 to 20 percent of the time. If a surgeon hasn't got a pedicle screw out of place in his career, he either hasn't done them or is lying. The removal of those screws - I can't overemphasize - was optional. It's an elective surgery."
Short, who has paramedic training and had worked at medical facilities, said Lewonowski threatened during an office visit to take away all her son's pain medication if he didn't quit acting like a "baby" regarding pain. Lewonowski began canceling appointments without explanation, she said. Anticipated therapy was never ordered. Weaver's discomfort continued, but the doctor urged him to resume regular activities.
Surgeon's license pulled
In hindsight, Lewonowski said he developed a dislike for his young patient.
"His attitude, his demonstrative behavior, his noncompliance, his yelling and cursing at the nurses - his noncompliance was a major issue," Lewonowski said.
He accused Weaver of staging a campaign to secure excessive drugs for himself and suggested he was trying to score for others.
"This appeared to be more of an abusive situation than somebody that required those pain meds," Lewonowski said. "And you've got to remember, too, Kolten Weaver is not the first patient I've ever seen who's been in pain after a back surgery."
In May 2012, Weaver underwent corrective surgery in Texas to remove a screw protruding from bone near his aorta and extract a screw extending from a vertebrae at the lining of his left lung.
Weaver said he can neither sit nor stand for lengthy periods. Sleeping is a challenge because getting comfortable is nearly impossible. He lost a dish-washing job because he was viewed as an insurance liability. The U.S. Social Security Administration declared him disabled. He just turned 21 and will likely never work again.
While Weaver struggled with his new frame of reference, Lewonowski was sacked by emergency order of the state Board of Healing Arts in April 2011. The doctor didn't fight the one-year suspension of his Kansas medical license two and a half years ago but recently expressed skepticism he committed "conduct likely to deceive, defraud or harm the public in violation" of Kansas law.
"That's the charge," Lewonowski said. "Doesn't mean that I believe it to be true."
Suspension was an outcome of a showdown in which medical staff at Via Christi suspected Lewonowski to be under the influence. He refused a Kansas Medical Society request for a drug screen and a subsequent appeal by Via Christi officials for a blood exam.
A trio of lawsuits alleging negligence by Lewonowski, including one by Weaver, are on file in Sedgwick County District Court. This litigation compelled the doctor to face attorneys' questions in pretrial depositions that shed light on conduct hidden from patients, including his status as a self-described "recovering alcoholic" and perpetrator of repeated episodes of narcotics abuse.
"It shows a pattern and practice that goes back a long, long time," said Wichita attorney Larry Wall, who represents a client alleging Lewonowski was responsible for injuring her spinal cord during neck surgery.
"But his story is, because he's been under the microscope, there's no cleaner doctor in the world than him," Wall said.
Stealing pain meds
The first documented incident of substance abuse involving Lewonowski occurred during his surgical residency at the University of Southern California. Essentially, the 1984 University of Arkansas medical school graduate was diverting drugs from patients at a county hospital in Los Angeles. He said he inflated the amount of Demerol prescribed patients, dosed those individuals a medically appropriate amount and pocketed the extra.
"And, so, you say you gave then 200 (milligrams) and kept a hundred. I gave them a hundred," Lewonowski said in a deposition.
He departed USC in 1985 ahead of a dismissal letter and worked in Arkansas and California before he was readmitted to the university's residency program. In 1993, while trying to avoid a positive drug screen at USC, he substituted for urine a sample of Pedialyte warmed in a microwave to body temperature. His scheme didn't work because heat changed the chemistry so the liquid was dense with alcohol.
In 1997, while working at Kansas Orthopaedic Center in Wichita, he had a relapse with Demerol. He said it coincided with surgical procedures performed on him. Lewonowski sees patients at Galichia Medical Group in Wichita and once again is considered a physician in good standing by the Board of Healing Arts.
Betty Caw, of Wichita, walks with a cane - a reasonable consequence of multiple knee replacement operations. When her primary care physician retired, her files were transferred to Lewonowski at Kansas Orthopaedic Center. She made an appointment to discuss pain in her left knee, which had been replaced three times since the late 1980s.
Caw, 79, had no knowledge of her new doctor's affinity for controlled substances. Lewonowski said he spoke with her about his alcoholism.
"I wish I had known," Caw said. "I'd never have gone near him."
To this day, the public can't obtain a declaration of fact from Board of Healing Arts' archives about how Lewonowski landed in hot water just as he prepared to perform knee surgery on Caw.
Delayed knee swap
In Lewonowski's clinic, he had diagnosed arthritis in Caw's knees. He injected medicines into her knees once in 2009 and four times in 2010.
"I didn't understand he couldn't see he was injecting into the plastic," she said. "But he gets paid for doing injections, and I had good insurance. He not only injected the left. He injected the right."
After months of injections, Caw developed an infection in the left knee. In December 2010, Lewonowski concluded the solution was removal of the left knee and insertion of antibiotics. Her knee would be reinstalled if treatment cleared the infection.
"If he hadn't diagnosed her as having bilateral osteoarthritis and hadn't injected her, there would be no infection," said Bretz, who represents Caw in a civil suit against Lewonowski and Via Christi.
Lewonowski pulled the old knee and scheduled her next operation for April 4, 2011, at Via Christi. After that initial knee replacement surgery date was scrubbed, Caw was readmitted April 8, administered anesthesia and wheeled into an operating room.
Lewonowski was met on his way to Caw's surgery by Kansas Medical Society staff member Judy Janes, who ran the state's Medical Advocacy Program for professionals struggling with illness, disability or addiction. Janes was on site in response to a report Lewonowski exhibited erratic behavior two days earlier at the hospital.
He said Janes requested that a drug test be completed by the end of the day. Via Christi administrators went further and proposed he submit to a blood test before launching any surgical procedure. Lewonowski left the hospital. After awakened, Caw learned her operation was called off a second time.
"Parameters of the testing changed and I was advised by counsel to not do the testing and therefore the surgery was canceled," Lewonowski said.
Via Christi suspended his orthopedic privileges April 8, 2011, and the Board of Healing Arts finalized its emergency license suspension April 12, 2011. Caw's knee was inserted at Wesley Medical Center in October of that year.
Secrecy is supreme
Bretz, the attorney for Caw, said the Board of Healing Arts' order labeled "confidential" the conduct inviting suspension. Lewonowski's behavior was an "imminent danger to the public health, safety or welfare," but details remain sealed.
Kathleen Selzler Lippert, executive director of the Board of Healing Arts, walked around questions about who benefited most from confidentiality when medical professionals, such as Lewonowski, ran afoul. She said nondisclosure of personal information to the public adhered to legal barriers and respected a "number of competing interests."
She said Lewonowski's conduct was "serious enough in this case for him to be suspended a significant period of time."
Wright, the attorney representing Lewonowski in the three malpractice cases, said state law on nondisclosure was written more than 25 years ago in an attempt to do more than sanction medical professionals. Individuals reporting suspected misconduct may need the cover of statutorial anonymity to protect themselves, he said.
"The expressed purpose of those laws is to improve the health care system," said Wright, who has defended malpractice cases for decades. "The reason the law was enacted was to empower those people to report inappropriate conduct."
The day before the Board of Healing Arts and Via Christi moved on Lewonowski, Dorothy White was scheduled to go under the doctor's knife for a lower-back procedure.
Lewonowski had declined, initially, to perform this surgery until she lost substantial weight. White said Lewonowski invited her to get involved in the "female hormone diet" that he was on. It would have required she receive shots from one of Lewonowski's friends.
However, Lewonowski's opinion about her girth and ineligibility for more back surgery changed without explanation. He insisted White consent to urgent removal of a cyst - no doctor since has recommended the surgery - to alleviate leg pain present since he operated on the Newton woman to fuse vertebrae and install plating Aug. 13, 2010.
"He was going to go in there and have findings to cover all his mistakes," said Wall, who represents White in her lawsuit against Lewonowski. "It was why he was interested in getting in there in a hurry."
An abscessed tooth kept White out of Lewonowski's operating room on the cusp of his suspension.
Dorothy and Craig White continue searching for answers to what might have gone awry during the initial neck surgery. Her ongoing pain, including a burning sensation along the left leg, led her at times to consider amputation and suicide.
"She walked into the hospital unaided by any artificial device," Craig White said. "After the surgery, she had great difficult supporting herself."
Impaired spinal cord?
In 2011 and 2012, Dorothy White was examined by specialists. Shortly after Lewonowski's license was suspended, one of those doctors, physician Theo Mellion, put distance between himself and Lewonowski's former patient.
"There's spinal cord damage. I can't see you anymore," White said Mellion told her.
White said doctor Dale Dalenberg decided she had Brown-Sequard syndrome. It was the result, White said, of an instrument impacting her spinal cord. She said Dalenberg told her "it looked like there was a forked object on my spinal cord."
The Whites said they were left to wonder about the significance of an evening visit to Lewonowski's office in 2010 - around the time of her neck surgery - when the smell of alcohol was on the doctor's breath.
As the Weaver, Caw and White lawsuits against Lewonowski crawled forward in February, Lewonowski's attorney filed a motion in district court to limit scope of deposition questions about alcohol and drug use. Wright included in the document details of Lewonowski's battle with liquor and narcotics.
Of his drug siphoning at USC, Lewonowski said he landed in a rehabilitation program for three weeks in Long Beach, Calif. The memo included contents of a 2003 deposition with an exchange between Lewonowski and an attorney about this first USC crisis.
"There was no physical addiction or anything," Lewonowski said. "I call it abuse. It was just a bad reaction to a bad situation."
"Are you an alcoholic?" the lawyer asked.
"Technically, yes, of course. Alcohol is a drug. If you're an addict then you're an alcoholic."
The brief indicates Lewonowski was readmitted to USC's residency program by adhering to the California Medical Board's diversion program. He relapsed in 1992 or 1993 amid a "problem between him and his wife," the document said. He consumed narcotics to counter depression and insomnia. When caught faking the urine test to USC, he went to a facility in Pasadena, Calif.
After moving to Kansas, the brief said, Lewonowski entered a Portland, Ore., center in December 1997 for addiction to narcotic pain medication. He asserted it was triggered by drugs prescribed by a doctor following surgery. Lewonowski attempted to treat his withdrawal with more narcotics and then took Compazine, which is prescribed for nausea and anxiety disorder. He was eventually hospitalized.
His sessions in Oregon lasted four months, and Wright's brief indicated Lewonowski reported his predicament to the Kansas Medical Society.
"I didn't have guys coming to my office and doing the handcuff routine," Lewonowski said. "No illegal prescriptions were ever written. I did not self-prescribe."
He was required by the medical society to submit to random urinalysis for five years.
In 2011, Wright's motion said, Lewonowski testified in a legal proceeding his license was suspended by the state for alcohol abuse but that statement was "actually not correct." His attorney monitoring the deposition advised him to not answer inquiries on that matter, so Lewonowski amended his remarks by saying, "I am not entirely sure how to answer that."
The brief by Wright offered a clarification: "He was stupid when he began using alcohol again in the more recent past. Alcohol was the source of his recent problem with the 2011 suspension."
Wright's document pointed to the consent order issued in April 2012 when the Board of Healing Arts reinstated Lewonowski's medical license. It also outlined confidential "treatment" and "monitoring" requirements that would remain in place until 2017.
"Have I got it under control?" Lewonowski said. "Yes. My life has changed 100 percent. The malpractice guys will say something different. They couldn't be more wrong."
He said publishing a story about his challenges would "hurt people."
"You're going to cause doctors who would otherwise come out to say: 'There's no way I'm coming out. No way am I going to get into recovery.' That's going to drive them underground," Lewonowski said.
He has resumed his surgical career and former patients have found their way back to him.
"I operated on three of them in the last week," the doctor said. "They know the stories. They are coming back to me because they trust me as a surgeon."
Lewonwoski's propensity for abuse of alcohol and drugs, according to available documents, placed the 56-year-old surgeon in treatment or counseling at least four times in his medical career.
"You see common elements that keep arising," said Wichita attorney Thomas Warner, who represents Weaver. "That made us think that this is not an isolated incident. A pervasive problem for him and, therefore, for his patients. He has an impairment issue that the Board of Healing Arts knows about, and they chose not to apparently do anything - at least in the long term."
Federal Court Jury returned a verdict against Promise Regional Medical Center
June 03, 2013
Today a Federal Court Jury returned a verdict against Promise Regional Medical Center (now known as Hutchinson Regional Hospital) for wrongful death of Jackie L. Sarff. Mr. Sarff, who was a resident of Great Bend, Kansas, was a patient at Promise Regional Medical Center in August of 2008 when a licensed practica nurse (LPN) attempted to insert a nasal gastric tube into Mr. Sarff, causing him to vomit and inhale the vomit into his lungs which then led to brain damage and his death five days later. The Plaintiffs, Bonnie Sarff, widow of Mr. Sarff, and Susan Baker, the adult child of Mr. and Mrs. Sarff, alleged that Promise Regional Medical Center did not follow their own policies and procedures or the Kansas Nursing Regulations when they allowed an unqualified and unsupervised LPN to perform the NG tube procedure. It was established at trial that the placement of an NG tube carried the risk of vomiting, aspiration and death if not performed correctly or if the vomit is not quickly removed from a patient's airway with suction equipment. The Jury concluded that the Hospital nurses did not follow the patient safety rules associated with this procedure which caused the death of Mr. Sarff. Thomas Warner of Warner Law Offices in Wichita, Kansas was the attorney for the Sarff family. Mr. Warner reports that the jury returned a verdict in the amount of $1,086,994.60. There was no pretrial offer of settlement. Randy Troutt of Hite, Fanning in Wichita, Kansas was the attorney for Promise Regional Medical Center.
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