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Bretz & Young In the News

Information about our work, verdicts and settlements in Kansas and beyond

Articles about Bretz & Young highlight the work our Kansas personal injury lawyers do every day for injury victims. We're proud of these articles because we take our work seriously. That's because we know that the work we do can make a dramatic difference in people's lives.

While we're honored to have articles written about us in newspapers, websites and magazines, the testimonials from actual clients about our case results are what truly matter the most. Making a difference in our clients' lives and earning their respect while doing so is what drives us to work hard every day.

Read the articles about the work we do in our community. Explore our blog. And contact us. We're eager to help you get your life back on track. Call (866) 881-0103 for a free case evaluation.

News articles about Kansas personal injury law firm Bretz & Young

Settlement reached over zip line accident at Kansas State Fair

By John Green / Staff writer / jgreen@hutchnews.com

Click here to read the original story.

An elderly man struck by a zip line rider during the 2015 Kansas State Fair reached a settlement with the zip line operator on Thursday, just moments before a Reno County jury was to hear instructions and closing arguments in the civil suit.

Earl Stevens, now 77, of Valley Falls, filed the suit against Butler Community College, which operated the zip line under a contract with the fair.

The college discontinued operating the ride last year. A witness testified the college based its decision to close the ride on budget cuts by the governor and it had nothing to do with the 2015 incident.

Stevens, a fairgoer of nearly 60 years at the time, was walking by the area with his family on the first Saturday of the fair and was blindsided by a rider coming down the line.

The impact knocked Stevens unconscious and he fell into a nearby area of rocks. He suffered multiple fractures to a cheekbone, eye socket and his sinuses. He spent two days in a Wichita hospital and testified he only stopped taking pain medication this week.

Stevens and his wife of 52 years claimed during the trial that he also suffered an injury to his shoulder that has degraded since the accident, making it impossible to fully lift his arm.

Mary Stevens, 80, testified she helps her husband with activities on their 1,100-acre farm he can no longer do, including pouring 50-pound bags of corn into the planter.

Stevens, represented by the Bretz & Young Law Firm in Hutchinson, sought more than $613,500 in the case. The settlement agreement, reached moments after Reno County District Judge Trish Rose ruled on what instructions the jury would receive, was confidential.

Both sides appeared to win some arguments on the instructions, but Rose ruled, on the issue of culpability, that the plaintiff had a burden of proving “wanton conduct.”

The state fair and the company that set up the zip line were not parties to the suit.

“We don’t think the fair did anything wrong,” said attorney Matt Bretz. “We never pursued a claim against the fair. Grizzly Adventures was responsible for the ride, as well as care for bystanders.”

“We hope this case tells ride operators, whether at the state fair, Riverfest or waterparks, that safety has to be the number one priority,” Bretz said. “If they do things where they endanger customers or others, they will be held responsible.”

Michelle Stewart, the attorney representing the college, declined comment, other than to confirm the college admitted no fault under the agreement.

Defense witnesses testified that staff on the ride yelled at Stevens to warn him when they saw him walking into the ride path, but he failed to react.


Reno Jury Awards Woman $93,000 in Auto Insurance Case

By The News Staff

Click here to read the original story.

A Reno County jury Wednesday awarded a Hutchinson woman injured in a July 2014 auto accident $93,000 from her insurance company.

Joyce Duffy, 69, of Hutchinson, was injured in a crash at East Third Avenue and Poplar Street on July 13, 2014, after a car ran a stop sign and hit the vehicle she was riding in.

The insurance for the driver at fault paid $25,000, but Duffy sought more under personal injury under-insurance coverage in her policy with State Farm Mutual Insurance.

The insurance company admitted it provided the coverage, but at issue during the two-day trial before Reno County District Judge Trish Rose was how much of Duffy's medical issues - including knee replacement, neck pain and ongoing vertigo - resulted from the accident, since she had some preexisting conditions, and the amount of damages.

The jury, which deliberated about 3½ hours, awarded Duffy $21,000 for medical costs, $40,000 for pain and suffering and $32,000 for future pain and suffering.

Matthew Bretz represented Duffy and attorneys with Foulston Siefkin the insurance company.


'Idiopathic' Cause Means Condition Personal to Worker, not Unexplained Cause

By Sherri Okamoto, www.workcompcentral.com, June 29, 2016

Click here to read the original article.

In a case of first impression, the Kansas Court of Appeals last week ruled that the state's statutory bar on compensation for "idiopathic" injuries didn't necessarily bar a worker from receiving benefits for an unexplained fall down a flight of stairs.

The fall caused Terril Graber to break his neck - but he has no recollection of how he came to fall. No one witnessed his fall either.

Since there was no known reason for his accident, the Kansas Workers' Compensation Board determined that it arose out of an idiopathic cause. As of 2011, the Kansas Workers' Compensation Act explicitly bars accidents from idiopathic causes from its workers' compensation scheme.

But the act does not define "idiopathic" - and Kansas case law has never defined the the terms within the context of its workers compensation law either.

Last Friday, the Court of Appeals concluded that "idiopathic" means a condition that is "personal or innate to the claimant." Since this is not the definition that the board used in Garber's case, the court ordered the matter remanded for the board to reconsider the compensability of his injuries.

Garber's injuries were very grave, according to his trial attorney, Matthew L. Bretz of Bretz & Young. In addition to a traumatic brain injury, Graber also suffered a cervical fracture at the C1 level.

He's undergone three neck surgeries since his accident, and worn a "halo" for 11 weeks, but the bones in his neck have not fused. Bretz said this means Graber still has a broken neck.

Graber has also been unable to work ever since his accident five years ago, and Bretz opined that "devastating" was not a strong enough word to describe the financial hardship on Graber from his medical bills, loss of income and inability to get comp benefits.

Kansas historically has been "one of the most conservative states in the country," Bretz said, providing very limited benefits to injured workers - but the 2011 amendments were "some of the most Draconian in the history of the Kansas Workers' Compensation Act."

When Gov. Sam Brownback signed HB 2134 into law five years ago, it raised the threshold required for an incident to be compensable to be the "prevailing factor" of the injury, clarified when employers are entitled to a credit for pre-existing conditions, created a rebuttable presumption of intoxication if a worker tests positive for drugs, and allowed for the forfeiture of benefits if a worker refuses to submit to a drug test.

The legislation also amended the act's definition of "arising out of and in the course of employment" to exclude injuries caused by an employee's willful failure to use a safety device and from "idiopathic causes."

In its decision Friday, the Court of Appeals noted that Kansas has at several cases that pre-date the 2011 reforms that use the word "idiopathic" and "personal" interchangeably.

A number of other states also define idiopathic as a personal or innate condition - including neighboring Missouri, Colorado, and Nebraska.

The court said it was persuaded by this "overwhelming weight of authority" and concluded that idiopathic must refer to a condition that is "personal or innate to the claimant" as used in K.S.A. 44-508(f)(3)(A)(iv).

"Because the Board misinterpreted idiopathic, its finding that Graber's injury did not arise out of his employment due to an idiopathic cause is erroneous," the court said. But the question of whether his injury was compensable is a question of fact that needs to be decided by the board in the first instance.

The court observed that "Graber's injury most likely arose from a neutral risk," which are "risks with no particular employment or personal characteristic."

The court noted that several cases prior to the 2011 amendments have held unexplained falls are a neutral risk, and that neutral risks were compensable.

Many states employ a presumption that an unexplained accident is compensable as long as the claimant was at work when it happened. This is known as the "positional risk" doctrine.

A majority of the states apply the positional risk doctrine to cases involving unexplained accidents, according to the 2012 version of Larson's Workers' Compensation Law, by legal scholars Arthur Larson and Lex K. Larson. These include Arizona, Arkansas, Florida, Idaho, Hawaii, Kentucky, Kansas, West Virginia, New York, North Carolina, and South Carolina.

The Kansas Court of Appeal on Friday noted that the 2011 amendments "clearly eliminated universal compensation for neutral risks," and so "the positional risk doctrine may no longer apply in Kansas."

Instead, the court said, Kansas might need to start using the "increased risk" test.

Most jurisdictions who use this standard of compensability use it for idiopathic falls when such falls were presumptively noncompensable, the court observed.

Under the increased-danger rule, an otherwise noncompensable fall may be compensable "if the employment places the employee in a position increasing the dangerous effects of such a fall, such as on a height, near machinery or sharp corners, or in a moving vehicle," the court explained.

Georgia, Illinois, Iowa, Minnesota, Oregon, and North Dakota all follow this approach.

The court posited that the "increased risk" standard would satisfy the statutory requirement in the Kansas comp act for a causal connection between a worker's injury and his employment. As the 2011 amendments do not, by their plain language, prohibit the use of the "increased risk" standard, the court said it could possibly still be a viable form of analysis for the board to use.

Bretz, the attorney for Graber, said he believed that Graber's case would satisfy the "increased risk" test because the presence of the stairs at Graber's workplace increased the risk of harm from a fall.

Ironically, Bretz said, the day Graber was hurt, Graber had been at a safety meeting for his employer, and one of the topics discussed was the dangers associated with stairs.

Bretz said he thought it was "almost a foregone conclusion" that Graber's fall arose out of and in the course of employment at this point, as Graber's employer had compelled his attendance at the meeting and that was the only reason Graber was on the stairs at the time.

Dallas L. Rakestraw of McDonald, Tinker, Skaer, Quinn & Herrington represented Graber's employer, the Dillon Companies. He said Tuesday that he has recommended that his client seek review of the court's decision by the Kansas Supreme Court. Dillon has 30 days from the date of the decision to petition for writ.

Rakestraw said his concern was that defining idiopathic as a condition personal to the claimant makes K.S.A. 44-508(f)(3)(A)(iv) "redundant."

Indeed, the court itself acknowledged that treating "idiopathic" as meaning as "personal" caused Section 44-508(f)(3)(A)(iv) to "overlap with the exception provided by Section 44-508(f)(3)(A)(iii) that says injuries arising out of personal risk are not covered."

Generally, Rakestraw said, "you don't have a statute that has a redundancy in it," and his argument to the Supreme Court would be that the act needs to be construed to avoid such a result.

If the Court of Appeals decision stands as the law of Kansas, then Rakestraw said he thought it will serve to "water down' the statutory defenses created by the legislature in 2011.

The court's decision "narrowed the definition of idiopathic" and this "allows more claims for come into the Workers' Compensation Act," Rakestraw opined.

Kim Martens, a defense attorney with Hite, Fanning & Honeyman who reviewed the court's decision, said he thought it left "some room for reversal by the Supreme Court."

The goal, he said, was to address case law that had expanded the protections of the comp system to conditions and activities that were not work-related. The idea was that "workers' comp should pay for work injuries," and not serve as a "general health insurance program,"Martens said.

Martens said he expected Friday's decision is "going to be used by claimants in support of future fact scenarios as allowing compensation in a broader sense than what the legislature intended."

So if it stands as the rule in Kansas, it undermines the 2011 effort to "decrease the amount of workers' compensation benefits being paid for non-work-related accidental injuries," he opined.

Jan L. Fisher of McCullough, Wareheim & LaBunker joined Bretz in representing Graber at the Court of Appeals. She declined immediate comment on the court's ruling.

To read the court's decision, click here.


Bretz & Young's annual carnival for Ave A School students

Students and families from Avenue A Elementary School were treated to a carnival and giveaway at the office of Bretz & Young - Injury Lawyers, 3 Compound Drive. This was the second annual carnival hosted by Bretz & Young and was meant to give families an enjoyable evening and to give students the toys that will help them actively play outside this summer.

Click here to read the original story.


Settlement Reached in Rare Defamation Lawsuit

By John Green, The Hutchinson News, May 16, 2016

Two men who sued Dollar General for defamation of character after an employee in the Hutchinson store called police in June 2014 to complain about the men standing outside the store have now settled out of court.

The case involving plaintiffs Donald Tolbert and Willie Miller Sr. was set for trail starting Monday, but the court learned late Friday that the two sides reached settlement. Details of the settlement were not available.

In their suit, the two men allege they were standing outside the store at 7 S. Adams St. on the evening of June 20, 2014, when police arrived and informed them they were being charged with criminal trespass, after a clerk in the store complained they'd earlier been harassing her inside the store and "made her fearful" because they wouldn't leave.

Both men denied being inside the store.

The clerk, who refused to leave the store to confirm her identification of the two after police arrived, told officers she'd watched them leave and was positive it was them. She also refused, however, according to the suit, to provide an in-store video of the earlier incident.

The suit did not detail what occurred earlier in the store.

Tolbert and Miller contended they were "exposed to public hate, contempt or ridicule and deprived of public confidence and social acceptance" after their names were broadcast on the police scanner and posted in the public police blotter for criminal trespass, and that the store clerk, Carly Sanchez, made "false and reckless accusations, without regard for the truth."

Both men had sought "up to $250,000 or whatever a jury thought fair," according to filings in the case. The Matthew Bretz law firm represented both men.


Ask Hutch: Law ads overstate ease of big wins; from small trains to zoo trains, railcars and visits on readers' minds

By Kathy Hanks, The Hutchinson News, Nov 16, 2015

This week's Ask Hutch questions cover a range of topics. But, we found the experts with answers.

Please keep the questions coming to askhutch@hutchnews.com, and always remember there is no such thing as a dumb question.

Q: My question concerns those attorneys who get their clients outrageous amounts of money "just that easy" if they are hurt in a car accident, or on the job, etc. Question: Are attorneys limited by law what percentage they get - like 10 percent or 50 percent?

Our answer to this question comes from Melinda Young, a partner at Bretz & Young LLC, a law firm handling all types of injury claims throughout the state of Kansas.

"Unfortunately, advertisements suggesting injured individuals can get an outrageous amount 'just that easy' are very misleading. They are also frustrating when they create false expectations that every injury can receive a huge settlement. The value of an injury claim is dependent on many factors, including the severity of the injury, the medical treatment required, and the lasting impact of the injury.

"But the amount an injured person actually receives is also dependent on the funds available to pay the claim - so advertisements might state that attorneys obtained a huge verdict, but if the available insurance is insufficient, the client never actually receives that amount. A good attorney will work very hard (and sometimes for a significant amount of time) to pursue every possible source of compensation in an effort to obtain enough funds to cover the true value of the client's case.

"Attorneys who handle these types of injury claims generally work on a contingency fee arrangement, in which we charge a percentage of the amount we recover for our clients. In workers' compensation cases, the law sets a maximum percentage of 25 percent. In other types of injury cases, the law requires that fees must be reasonable in relation to the particulars of the cases and consistent with the standard fees charged in that area. So the actual fees charged on injury claims can vary to some degree."

Q: I was poking around Careyville recently and saw a Hutchinson & Northern locomotive barely creeping along on a spur of train track that hadn't been used. It was a derelict looking locomotive with a crude logo that looked like it was made with stencil and said Hutchinson & Northern. It was rolling over these tree sprouts as big as my wrist. I had read the H&N had folded?

Max Liby, with Hutchinson Transportation, an industrial railroad that switches rail cars for Hutchinson Salt and Siemens, knew exactly what you were seeing.

Yes, it was a Hutchinson & Northern locomotive. It was purchased by the V&S Railroad, which is a little short line that runs from Medicine Lodge into Sun City. It is still a short line and operates once a week moving rail cars from Midwest Iron to the major railroads.

The Hutchinson & Northern was once owned by the Carey Family and used to go between the Carey Salt Plant, at 1800 Carey Blvd. to the salt mine. The only customer left on the line is Midwest Iron. Mervis, a rail car refurbishing company, pulled back from developing here. But, part of the land purchase agreement included the Hutchinson & Northern Railway. But, the deal is on hold.

Q: I took my girls to the zoo and there were no deer and no turkeys. And the train was closed. They were very disappointed.

If you don't see animals at the zoo try coming back another day.

Kiley Buggeln, zoo curator, said the deer are there, but were in their stalls.

"They have open access at all times to their stalls and come on exhibit or off on their will," Buggeln said.

Regarding the turkeys, Buggeln said they had a female turkey who would just show up and leave when it felt like it. There was also a male turkey who would stop by, but they haven't been dropping in lately.

As for the train, it is open year round but is volunteer driven.

"It's only able to run it if there is a volunteer," Buggeln said. "We need volunteers. We always, always need volunteers. We try to run it on busy weekends and you call ahead to know if it's running."

Meanwhile, 6-month-old Dusty Pronghorn is out most the time.

Please give the zoo another chance, you never know what animals might be on exhibit next time.


Business people for Aug. 23

From The Hutchinson News, Aug. 22, 2015

Matthew Bretz was recently selected by his peers for inclusion in The Best Lawyers in America 2016 in the field of Personal Injury Litigation-Plaintiffs for the Wichita area. Bretz is a partner at the Hutchinson law firm Bretz & Young, L.L.C. This is his third consecutive selection for a Best Lawyers publication.

Since it was first published in 1983, Best Lawyers has become universally regarded as the definitive guide to legal excellence. Best Lawyers is based on an exhaustive peer-review survey. Over 79,000 leading attorneys are eligible to vote, and more than 6.2 million votes have been received to date on the legal abilities of other lawyers in their practice areas. Lawyers are not required or allowed to pay a fee to be listed; therefore, inclusion in Best Lawyers is considered a singular honor.


Redone HutchFest will mix new, old attractions

By Adam Stewart - The Hutchinson News, May 29, 2015

(Note: Bretz & Young is proud to be a sponsor of this event)

HutchFest organizers are adding a premier barbecue contest and dirt-track racing, trying to continue to reinvigorate an event that two years ago suffered from funding reduction and turnover of its board of directors.

This year's HutchFest will bring a Kansas City Barbecue Society-sanctioned barbecue contest and 81 Speedway dirt-track racing to the Kansas State Fairgrounds July 3 and 4. The goal is to make them annual events, said HutchFest Chairman Ron Williams.

The barbecue contest will include public voting on people's choice awards on July 3, followed by KCBS judging on July 4. Williams said he expects between 25 and 50 teams to enter the competition, including possibly from neighboring states, attracted by at least $5,000 available in prizes.

In true Kansas City barbecue fashion, the contest will include a variety of meats: chicken, brisket, pork and pork ribs.

The races, which will count for regular-season point standings, will include modified, AAA modified, rookie modified, street stock and thumper divisions. Mel Hambelton Ford and 81 Speedway are sponsoring the races, which will be the even-louder prelude to the fireworks extravaganza.

Other attractions include a car and motorcycle show sponsored by Midwest Fort & Toyota Superstore, the Hutchinson's Got Talent talent show, live music, the Patriots Parade, a fun run and competitive eating.

"Honoring Hutchinson Heroes," a video consisting of interviews with World War II, Korean War and Vietnam War veterans, will be a part of the July 4 festivities.

The fireworks show will be as big as any in recent years, Williams said. The show should take 15 to 18 minutes and will be synchronized with music, which will be aired by 102.9 FM. The city of Hutchinson and Bretz & Young Injury Lawyers are major contributors to the fireworks show, the only event receiving public funding, Williams said.

The majority of events will be at the state fairgrounds. The July 4 pancake feed, fun run and parade will be downtown. And a hot dog feed and free swim night will be July 5 at Carey Park and the Salt City Splash.

Admission required

After two years of being a free event, HutchFest again will charge for admission, with a portion of the proceeds to benefit the Reno County Veterans Memorial.

Williams said the decision to reinstitute the admission fee involved two factors. He said admission revenue will help HutchFest put on the best event it can, with more bands, activities and attractions, while sponsorships are getting harder to come by.

Part of the loss of sponsorships was reduced funding from the city for the fireworks show. After the city prohibited sales of aerial fireworks, the number of fireworks stands in Hutchinson fell dramatically, and so did the fireworks stand permit fees, which were earmarked for the fireworks show, Williams said.

The other side of the equation is perceived quality. Williams said organizers think $5 for a wristband at the gate - half the price of admission to Wichita's Riverfest - is a great deal.

"We feel like it's worth it," Williams said. "We feel like we're hitting our stride."

It has taken a while for organizers to find their stride again after much of the board resigned in 2013.

"When everybody resigned at once ... it became very difficult to organize with dwindling volunteers," Williams said. "We basically had to reinvent HutchFest."


Bretz & Young Obtains Record Jury Award in Domestic Violence Case

gavelOn March 6, 2014, a jury in Montgomery County District Court awarded a record breaking $200,000 to the victim of a domestic battery in which she was severely injured and required substantial medical treatment. In the three day jury trial, Matt Bretz of Bretz & Young was able to obtain damages for the Plaintiff who had no insurance and no way to pay for future medical treatment for her injuries. The Clerk of Court in Montgomery County indicated that this was the largest jury award in a very long time and the highest amount ever awarded for a battery case in Montgomery County.


Wichita Surgeon Rehabilitating Career Scarred By Drugs, Alcohol

articleimageTim Christopher - The Topeka Capital Journal

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."

'Changed 100%'

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."


Matt Bretz included in 2014 edition of The Best Lawyers in America

By: The Hutchinson News - November 30, 2013American Flag

Hutchinson attorney Matthew Bretz was selected by his peers to be included in the 2014 edition of The Best Lawyers in Americafor his work in the practice area of Personal Injury Litigation-Plaintiffs.

Bretz, a native of Hutchinson, received a B.S. from Kansas State University, where he taught both classical and contemporary physics. He graduated from Pepperdine University School of Law, where he received the Vincent Dalsimer Moot Court Award from U.S. Solicitor General Kenneth Starr. After graduation, he practiced with the Los Angeles firm of Engstrom Lipscomb & Lack, litigating aviation, toxic tort and catastrophic injury cases.

After returning to Kansas, Bretz was a litigation partner with Gilliland & Hayes, P.A., until starting Bretz Law Offices in 1997. The firm name was changed to Bretz & Young in 2013 when Melinda Young joined as a partner. Mr. Bretz currently handles all types of injury claims, including primarily automobile, workers' compensation, and premises liability matters.

Bretz is licensed in Kansas and California, by the U.S. District Courts in Kansas, California, Colorado, Oklahoma, Illinois and Nebraska, and by the Tenth Circuit Court of Appeals. He is a member of the Board of Governors for the Kansas Trial Lawyers Association, and formerly was the Medical Legal Editor for the Journal of the Kansas Trial Lawyers Association.

Bretz serves on the Board of Directors for United Way, the Training and Evaluation Center of Hutchinson (TECH), the Board of Governors for the Kansas Association for Justice (KAJ), and is a former board member for The American Red Cross, Interfaith Housing and for Big Brothers of Reno County, and is a Sunday School teacher.

Matt Bretz and Melinda Young Recognized in Kansas City Magazine

(Content Published in The Hutchinson News - Business Section - June 8, 2013)superlawyerscover

Attorneys Matt Bretz and Melinda Young were recognized in Kansas City Magazine in their annual "Super Lawyers" and "Rising Stars" list.

Each year, KC Magazine publishes a list of the top attorneys in Missouri and Kansas. Selection to this list has three phases. First, the candidate pool is created using peer nominations. From the pool, their research department evaluates each candidate. Finally, candidates are reviewed by their peers within their primary area of practice.

Candidates are evaluated based on 12 indicators of peer recognition and professional achievement, including: verdicts, settlements and transactions; representative clients; experience; honors and awards; special licenses and certifications; position within a law firm; bar and other professional activity; pro bono and community service; scholarly lectures and writings; education and employment background; and other outstanding achievements. Research evaluations are based on information gathered from a variety of sources including biographies, database sources and legal periodicals.

Bretz has also been recognized as one of the Top 100 Trial Lawyers by the National Trial Lawyers' Association each of the last six years, as the only "AV Preeminent" rated injury attorney in central Kansas, and has received the Client Distinction Award from Martindale Hubbell - an award earned by fewer than 1 percent of the attorneys in the country.

Young is also a two-time published and award-winning author and a former editor for the Washburn Law Journal. Young also recently became a partner in the firm, now named Bretz & Young, the first personal-injury firm in the area.

To view the digital copy of the magazine, click here.


Law Firm to Fund City Fireworks

fireworksBretz and Young Injury Lawyers has made a $10,000 contribution to pay the city's costs in staging a Fourth of July fireworks show at the Kansas State Fairgrounds, City Manager John Deardoff and Hutchinson City Council member Jade Piros de Carvalho said Tuesday.

The city had traditionally paid for the fireworks show with half the revenue from the sale of permits to operate fireworks stands. But after a rash of July 4 grass fires and another fire that caused $500,000 damage to a home, the city banned aerial fireworks and any other fireworks that cast a shower of sparks more than 6 feet. Fireworks dealers, convinced they can't sell enough of the legal fireworks to make a profit, have largely set up shop in other places where the aerial fireworks are still legal. After selling nine permits in 2012, the city has sold only one this year.

The city previously received a $3,000 contribution from Eagle Communications, which operates KWBW, KHUT and KHMY radio stations in Hutchinson, and $2,500 from Showalter Fireworks, which will put on the show.

But the show costs $15,500, and the Hutchinson City Council had informally agreed to have the city pick up the remainder of the tab, given it was a change in city code that eliminated the revenue for the show.

Deardoff said Tuesday that Bretz and Young had recently contacted Piros de Carvalho with the offer to pay the city's costs.

The show will be at 10 p.m. on July 4. In the event of inclement weather, the show will take place on July 5.

Meanwhile, HutchFest is seeking sponsorship contributions to defray the costs of free events it is planning for July 6.

A letter seeking the contributions says HutchFest is planning events such as concerts in the park, a water balloon battle, a community expo tent, inflatables, food-eating contests and more.

The festival will not sell admission buttons this year, so it will rely on sponsorships.

Source - The Hutchinson News - Ken Stephens - June 5, 2013


Kan. High Court's Upholding of Cap in Personal Injury Suits Gets Mixed Reactions 

By: John Green; The Hutchinson News - October 6, 2012gavel

A Kansas Supreme Court ruling issued Friday upholding a longstanding cap on non-economic damages in personal injury lawsuits will help ensure Kansas hospitals continue to be able to recruit doctors to the state, the director of Hutchinson's hospital said.

"The favorable ruling ensures continued access to medical services," said Hutchinson Regional Medical Center CEO Kevin Miller. "It enables Kansas to attract and retain physicians, and helps health-care providers do what they can to keep health-care costs affordable."

A local civil trial lawyer contended, however, that the ruling punishes victims, violating their constitutional rights, while protecting insurance companies and those who are negligent.

The court ruled Friday that Kansas can continue to limit pain and suffering compensation awards in personal injury lawsuits to $250,000, upholding a lower court decision that slashed damages a jury awarded to a Eudora woman whose doctor removed the wrong ovary from her in 2002.

Business and medical groups urged the justices to uphold the 1988 law, arguing that it keeps insurance premiums affordable and creates a better economic climate.

Longstanding ruling upheld The high court previously upheld the law in a 1990 ruling, but none of the seven current justices were on the court at the time.

In Friday's 5-2 ruling, the Supreme Court acknowledged the cap affects rights guaranteed by the Bill of Rights in the Kansas Constitution, but said the justices have long recognized that legislators can take such a step if an "adequate substitute remedy" is provided. It said that in the Eudora woman's case, the substitute is a state law requiring doctors to carry malpractice insurance, creating a guarantee that awards against them will be paid.

The justices also noted that Kansas has no cap on awards for economic damages, as some other states do.

While the majority upheld the court's 1990 ruling, it also found it "troubling" that the cap on non-economic damages hasn't increased to account for inflation since the law's enactment.

"The impact of this case on health care in Kansas is obviously very significant," Hutchinson's Miller said. "Physicians, hospitals and other health-care providers can rest assured they can continue to care for patients and be able to afford liability insurance in Kansas."

It's already hard to recruit doctors to Kansas, Miller said, because of the state's lack of big cities, which physicians - and their spouses - often find more attractive places to live. Having higher medical malpractice insurance costs would have made it even more difficult, as well as making it harder to retain physicians already in the state, he said. "Like anything else in the hospital world, if our cost of medical malpractice insurance increases, it would be one more cost passed on to consumers," he said.

Miller wasn't concerned that the $250,000 cap hasn't been raised since it was set 24 years ago, noting other damages that can be awarded are not capped.

"Secondly, $250,000 in anybody's world is still an awful lot of money," he said.

Dissenting opinions The two dissenting justices, Justices Carol Beier and Lee Johnson, agreed with the plaintiff that the cap violates the state constitution's Bill of Rights.

"Ultimately its application is very limited," said Hutchinson attorney Matt Bretz, "because it's exceptionally rare that a jury awards more than $250,000 in Kansas."

"Having said that, in those rare cases where a jury determines that the value of a lifelong disability or suffering or lost wages that a person should receive is a certain amount, it seems unconstitutional to me to take away that person's right to trial by jury; that the Legislature can take away that person's right to recover what a jury of peers who heard the evidence determine is appropriate and fair."

Kansas juries, Bretz said, are "notoriously conservative," so when such a case "does come into play... it hurts the person already injured."

"It came into play in a case I had not too long ago, where a person rear-ended by a drunk driver become a paraplegic and can't work for the next 30 years of her life," Bretz said. "Instead she's confined to a wheelchair for a lifetime of having bandages changed and not being able to marry or any number of things like that. That's the sort of case where the cap further hurts an injured person. It protects the drunk driver and the insurance company, but hurts the person who was catastrophically injured."

"It doesn't really affect the insurance company's exposure if they've accepted a premium for a half million or million dollars coverage," Bretz said. "They've already been paid for it. What it does is take advantage of unsuspecting consumers."

Several groups, including the AARP, the Disability Rights Center of Kansas and the state's Coalition Against Sexual and Domestic Violence, joined the plaintiff's attorneys in arguing that the cap discriminates against women, the elderly and the disabled. They argued that non-economic damages tend to make up a larger percentage of their awards in lawsuits because their wages tend to be lower or they're retired.

The court rejected those arguments as well. In the majority's opinion, Justice Dan Biles wrote that it's "reasonably conceivable" that the cap stabilizes insurance premiums.

According to the American Medical Association, more than half of the states limit non-economic damages, though in July, the Missouri Supreme Court struck down that state's $350,000 limit on non-economic damages in medical malpractice lawsuits.

The Associated Press contributed to this story.


Dolly Parton's Imagination Library aims to spur

By: Mary Clarkin - The Hutchinson News - March 21, 2012imaginationlibrary

"The Little Engine That Could" could fuel a child's interest in books and make him ready for "Look Out Kindergarten, Here I Come." Both book titles are in Dolly Parton's Imagination Library and soon could be in Reno County children's personal book collections.

A campaign to help ready Reno County's youngsters for kindergarten will send a free, age-appropriate book monthly to every child, regardless of the family's income. The child is eligible from birth up to age 5, and each child in a household is eligible to enroll in the program and receive his own book.

Country singer and actress Dolly Parton launched the Imagination Library in 1996 in Sevierville, Tenn. The program subsequently expanded across the country and even beyond U.S. borders.

In Reno County, data showed less than half of the county's children performed well on kindergarten readiness tests. That spurred United Way of Reno County last year, with the help of a Rotary grant, to help roll out Dolly Parton's Imagination Library in the Fairfield school district.

On Tuesday at the Hutchinson Public Library, United Way Executive Director Tona Turner announced the program would expand throughout the county.

Marisa Swartzentruber, Hutchinson, already reads books to son Judah, almost eight months.

He especially responds to picture books depicting babies and animals, Swartzentruber said.

"That will be wonderful," Hutchinson foster mother Shannon Palmer said of the book program.

Grants and corporate sponsorships aided the initiative, according to Turner, noting:

  • Bretz Law Office will sponsor books for children in Buhler and Haven.
  • Strohl Oil Co. will sponsor the program for Pretty Prairie preschoolers.
  • A Bank of America grant will sponsor Nickerson children.
  • The Herman, Ester & Henry Stallman Foundation and United Way will sponsor Hutchinson and South Hutchinson children.

The Dolly Parton foundation covers the cost of the books, which are hardback or stiff paperbacks. A book can have a retail value of about $15.

"Dolly is a very charitable lady," Turner said.

Sponsors will finance shipping costs.

It takes an estimated five years for a program to reach full steam. Typically, about 70 percent of those eligible participate, Turner said.

At full maturation, she said, it will cost about $65,000 annually for the Reno County program, so grants and sponsorships will be a necessary component, she noted.

Dolly Parton's Imagination Library

Who: For all children in Reno County under age 5

What: One free child's book will be mailed monthly to each child. The books are the child's to keep.

Where: Registration forms are available at Hutchinson Public Library, 901 North Main, or any elementary school in Reno County. Also, parents may register children online, at www.unitedwayofrenocounty.org.


Doctor's Suit Against Hutch Center Settled

A federal lawsuit between Dr. Steven Braun and Hutchinson Regional Medical Center has been settled after nearly a year in litigation.emergency_hospital_entrance

Details of the settlement finalized last month are not available due to a confidentiality agreement.

"Legally, I can't comment," said Hutchinson Regional Medical Center President Kevin Miller.

Ethan Kaplan, the Hutchinson attorney representing Braun, said he was unable to disclose the exact amount of the settlement.

Braun had sought a sum "in excess of $75,000," standard language in such civil case filings.

Braun sued after he left Hutchinson and began working at a hospital in Springfield, Mo. He alleged he wasn't paid for about 32 months' work as medical director at the Hutchinson hospital's Chalmers Cancer Treatment Center. The last contract between Braun and the hospital had ended in 2008, and he had continued to perform work as medical director until late 2010, Braun asserted.

The hospital pointed to the lack of a signed contract and the absence of time records, in its argument that it did not owe Braun.

District Magistrate Judge Gary Sebelius, Topeka, presided over the case.

By The Hutchinson News Staff


Bretz Named in NTLA's 2012 Top 100 Trial Lawyers

TopTrialLawyerslogoThe National Trial Lawyers Association has selected Hutchinson attorney Matthew L. Bretz to its list of the Top 100 Trial Attorneys for 2012. This is the fifth straight year that Bretz has been awarded this honor, making the Top 100 list every since 2008.

Bretz was also recognized by Kansas City Magazine as a "Super Lawyer" in the November 2011 edition of KC Magazine.

By The Hutchinson News


KanCare method raises fear about future, TECH

(Credit: Photo by Sandra J. Milburn - The Hutchinson News)kancare

By: Mary Clarkin - The Hutchinson News (February 18, 2012)

Macy Marshall, 25, born with developmental disabilities, is one of approximately 4,300 Kansans with developmental disabilities waiting for state assistance that, in her case would make it possible to more fully utilize the services of the Training and Evaluation Center of Hutchinson.

Macy's been on the waiting list since 2006, said her mother, Crystal Marshall. Since those on the list longest generally are the next in line to receive a Home and Community-Based Services waiver, Macy is inching closer to the top.

But the advent of KanCare has Crystal Marshall voicing her fear: Macy may never get off the list.

KanCare and Medicaid

Kansas is gearing up for a massive overhaul in the delivery of Medicaid, after expenses have risen annually an average of 7.4 percent since 2000. Federal and state funds amount to about $2.9 billion annually, assisting roughly 300,000 low-income adults, people with disabilities and pregnant women and children.

The Gov. Sam Brownback administration conducted meetings around the state in 2011, and last fall announced an "integrated care system" known as KanCare, scheduled to take effect Jan. 1.

The premise of the new Medicaid system is that better coordination of an individual's care, including preventive care, can reduce costs and improve care. Private insurance companies will assume a leading role in a managed-care approach to Medicaid. Companies are competing now for the three contracts the state will award.

Medicaid beneficiaries automatically will be assigned to one of the three vendors, and will be given 90 days after the assignment to change to one of the other two vendors, if they choose.

The three vendors, also known as managed-care organizations, will have contracts with various medical providers, such as hospitals, physicians, and pharmacies. It's possible a Medicaid beneficiary could find a provider he uses, such as a pharmacy, is not in the network offered by his assigned managed-care organization.

"The new system will achieve cost savings through improving outcomes for needy Kansans," said Lt. Gov. Jeff Colyer, a plastic surgeon and the administration's point man in crafting Medicaid reform.

The administration expects managed-care will reduce Medicaid growth by 8 to 10 percent over five years, saving $853 million.

Critics emerge

"I think everybody's been on the negative side," said Senate Majority Leader Jay Emler, R-Lindsborg, when asked which of his constituents have spoken positively of KanCare.

Carla Adams, administrator of Riverview Estates nursing home in Marquette - in Emler's district - and Heather Cave, director of nursing at the 40-licensed-bed Marquette facility, traveled to Topeka last week to testify before a legislative committee.

Adams is critical of KanCare because she thinks it will reduce decision-making at the nursing home, involving the managed care company when deciding whether a resident should see a doctor or go to the hospital.

The managed-care organization also will assess its clients to determine if they should be in a nursing home, Adams said, as part of the KanCare Solution to prevent "premature institutional placement."

Adams is concerned some residents will be told they are no longer eligible for a nursing home.

"Some of our residents have become very upset, as have their families, of course. There are so many unknowns," Adams said.

Adams is among those urging the administration to postpone implementation of KanCare until more study is done.

The Kansas Hospital Association offered Senate committee testimony in January that acknowledged the "current trajectory" of Medicaid spending was not feasible. However, the association cautioned that "arbitrary reductions to payments to achieve short-term budget objectives" would be detrimental.

TECH says no

The most vociferous opponents of KanCare are agencies and advocates for people with disabilities. They want to be "carved out" of the managed-care Medicaid order.

The identity of companies competing for a state contract has not been publicly released, but TECH president and chief executive officer Brenda Maxey knows some of those interested. Preparing their proposals for the state, insurance companies have contacted Maxey with questions about TECH and its clients.

They all have headquarters outside Kansas, and include the firms Aetna, Centene, and Amerigroup.

Other states adopting managed-care Medicaid don't have the Mental Retardation/Developmental Disabilities component under the same umbrella, Maxey said.

There's a difference between acute and chronic, she said.

For a hospital patient with a physical ailment, the managed-care organization could determine out-patient rehabilitation would be a cost-effective option.

But a person with lifelong developmental disability can require assistance seven days a week.

Crystal Marshall noted that forms she often fills out for her daughter ask: "Has anything changed?"

"Nothing's going to change with their ability," she said.

The concern, said TECH board member Matt Bretz, whose sister-in-law is a TECH client, is if the individual is no longer "improving," the managed-care organization could decide to halt funding for services.

Quite honestly, Maxey said, the insurance companies quizzing her about TECH's operations "were blown away" because they were unfamiliar with how to fit this group into their business model.

Maxey thought Blue Cross and Blue Shield of Kansas' announcement in January that it would not seek a KanCare contract was telling. Blue Cross' director of institutional relations Angie Strecker wrote in part:

"We gave it our most serious consideration and analysis. In the end, although we believe the RFP (request for proposals) may present a sizable opportunity, it would have required us to dramatically change our business model to serve new populations in different settings in less than a year. We decided that we could not responsibly commit to so great a change at this time."

Casey and Tal

Casey McLain, 31, and Tal Dondlinger, in his mid-40s, have disabilities, but with assistance from TECH, they live separate from their parents and hold jobs, at Holy Cross Church and School and Sirloin Stockade, respectively.

Casey loves his life, say his parents Larry and Pat McLain.

When Tal's mother Mary Dondlinger had health problems, Tal told his father, Bill Dondlinger, not to worry about him because he had TECH support.

"What peace of mind," Mary Dondlinger said.

Larry and Pat McLain and Bill and Mary Dondlinger object to the KanCare model, particularly with the insurance companies in control.

Larry McLain cited his own experience of a doctor prescribing a medication for two weeks to knock out a staph infection. The insurance company considered ten days adequate.

Bretz and Marshall can't see how for-profit insurance companies can reduce costs and take a profit, while maintaining the quality and extent of services.

KanCare will have outcomes benchmarks for insurance companies, and a bonus incentive for succeeding.

Maxey thinks if the experiment fails it's the end-user who will suffer.

Brownback's budget for fiscal year 2013 contains a $2.7 million reduction in developmental disability waiver funding. It comes after a reduction of funds over the last five to six years prompted TECH to eliminate 15 fulltime positions. Most of TECH's 100 to 125 employees are direct support professionals, and Medicaid payments help finance their work. Already, fundraising is a necessity to meet costs, Maxey noted.


Legislators and the administration

Rep. Jim Ward, D-Wichita, introduced a bill in January to exempt people in the MR/DD waiver program such as TECH clients, from the managed-care system. The bill remains in the House Committee on Health and Human Services.

Sen. Dick Kelsey, R-Goddard, supports that goal and wants a six-month delay of implementation of KanCare for other Medicaid groups.

"It's so massive and complex," Kelsey said. "I don't think the timeline works," he said, of the January start. "If everything works perfectly, I don't think there's enough time," he said.

Federal approval is needed, and Kelsey doubts that will come quickly.

"The concern expressed to me by members of my caucus is how smoothly the transition can be made in a short period of time," Senate Majority Leader Emler said, referring to Senate Republicans.

Some Senate Republicans think there may be a need to slow it down to avoid unintended consequences, Emler said.

Asked how confident he was a managed-care approach would fit the needs of the developmentally disabled, Sen. Terry Bruce, R-Hutchinson, said he's confident that managed-care is the direction Kansas needs to go because of federal government funding cuts.

A call to Lt. Gov. Colyer's office was not returned, but the administration continues to plan for the January start.

That's political showmanship, Kelsey said.

"Never show weakness," he said.

The Legislature has limited options, Emler said. He noted that if the Legislature intervened, the Governor held the veto power. Emler was doubtful a veto could be overridden.

The changes are happening as the administration is realigning Cabinet departments and duties. At the same time, the position of general inspector, charged in part with watching for Medicaid fraud and abuse, has been unfilled since the summer of 2011.

"We've got another month before the fat really hits the fan," Kelsey said.


Slain woman's family settles suit against retirement community

From The Wichita Eagle, Aug. 26, 2010
By DARCY GRAY

HUTCHINSON - A Reno County civil lawsuit filed last year by the family of an 85-year-old woman who was sexually assaulted and killed while living in a Buhler retirement community has been settled.

The lawsuit against Sunshine Villa Inc., Buhler Sunshine Home Inc. and its administrator, Keith Pankratz, was filed in January 2009 by the estate of Pearl Arthaud, who was strangled in her bed in 2008 by Marvin J. Gifford Jr.

Gifford, 46, is serving a life sentence without parole at El Dorado Correctional Facility for Arthaud's death and attacks on two other elderly women in Reno County.

A hearing in the civil case scheduled for Wednesday in Reno County District Court was canceled, as the two sides reached an agreement, District Judge Tim Chambers confirmed. Terms of the settlement are confidential, however.

The lawsuit, filed on behalf of Arthaud's heirs, sought $510,000 in damages, including $250,000 for wrongful death, $250,000 for pain and suffering and $10,000 for funeral expenses.

The lawsuit claimed officials at the retirement community failed to take appropriate precautions to protect Arthaud after she'd reported that a man entered her apartment and tried to have sex with her. Arthaud had told Buhler Sunshine Home staff she awoke to find a man in her bed in March 2008, and he left after she refused his advances and asked him to leave.

Retirement-home officials were accused of being negligent by failing to investigate the attack, failing to warn other residents and staff of the attack, and failing to provide additional security in the retirement community.

In a response to the lawsuit, Sunshine officials denied the allegations, arguing they had no control over Gifford's actions or the events that led to Arthaud's death.

Matthew Bretz, the local attorney representing Arthaud's estate, obtained sworn testimony from Gifford, who admitted attacking and sexually assaulting elderly women in 2008 in the Hutchinson area. According to the motion, Gifford also admitted to being in Arthaud's Buhler Sunshine apartment twice before killing her in May 2008.

Gifford also said he drove around the parking lot at the retirement community and found there was little security.

Sworn statements were also taken from Buhler Sunshine Home employees, along with a deposition from Pankratz, according to the motion. Two employees voiced concerns about a lack of security at the retirement community, and one of the employees also questioned why no precautions were taken after attacks on elderly women in the area had been reported.

Gregory S. Young, a Wichita lawyer representing Buhler Sunshine Home, said Gifford's statements to Bretz contained many inaccuracies that contrasted his confessions to law enforcement, including his claim Arthaud's door was locked and that if there was security at the retirement home he would have gone elsewhere.

Buhler Sunshine Home has installed security cameras at the campus and mechanisms to secure the cameras that were in place prior to Arthaud's death, said Young.

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