Joseph and Shirley Noll, surviving father and mother of Anthony C. Noll, et al. v. Deborah Burns, D.O., et al.

Medical Malpractice - Anthony Noll sought treatment from Dr. Weiner, an allergist
practicing in Lawrence, Kansas, for his allergies and asthma. Dr.
Weiner prescribed allergen injections that were to be administered
to Anthony at certain intervals. While Anthony was attending
Emporia State University, Dr. Weiner forwarded his medication to
the university's health clinic where Defendants administered the
injections. In 1993, after receiving an injection at the health
clinic, Anthony suffered an anaphylactic reaction and subsequently
died.

In March 1995, Plaintiffs filed wrongful death and survival
actions alleging defendants were negligent in treating Anthony's
asthma and in administering the allergin shots. The allegations
implied the administration of the injections while Anthony showed
apparent symptoms of asthma increased the risk of an anaphylactic
reaction.

Plaintiffs alleged the following in their pretrial questionnaire:
(1) Defendants failed to recognize and appreciate that Anthony's
asthma was unstable; (2) Defendants failed to treat the cause of
Anthony's unstable asthma; (3) Dr. Weiner's instructions were not
followed by Defendants since the allergin shots were administered
while Anthony showed symptoms of asthma and the doses were
excessive; (4) Defendants were negligent in treating Anthony after
he experienced the anaphylactic reaction.

Defendants asserted the following defenses in their joint pretrial
questionnaire: (1) Defendants followed Dr. Weiner's instructions;
(2) Defendants' actions were within the standard of care for the
treatment of asthma and the administration of allergen injections;
(3) Anthony's asthma was treated within the recognized standards
of care for nurses and physicians; (4) Anthony's treatment after
the anaphylactic reaction was within the recognized standards of
care. Defendants also asserted the following defense:

"Defendants submit that anaphylaxis is a known risk associated
with allergen injections, yet extremely rare. The causes of
anaphylaxis are not sufficiently known so as to predict its
occurrence. If the allergist believe [sic] any additional steps or
equipment should have been employed for administration of
allergens, this information was not provided to the ESU clinic by
Dr. Weiner, an expert in the area of allergens and their
injection, and/or was not provided in a clear enough form as to be
understood and followed by the lesser trained nurses and doctors
at the ESU Student Health Clinic."

In July 1996, the parties filed a pretrial order incorporating the
factual contentions and legal theories set forth in the pretrial
questionnaires. Subsequently, Plaintiffs filed a motion in limine
seeking to prevent Defendants from admitting evidence that
Plaintiffs or any other person contributed to cause Anthony's
injuries since Defendants had not asserted the defense of
comparative negligence. The trial court denied the motion,
concluding it would handle any objections to the evidence at
trial.

The jury found Dr. Burns 50% at fault, Taylor 30% at fault and and McDaniel 20% at fault, and awarded Plaintiffs $129,500 in damages.

Dr. James Barker and Dr. Raymond Dattwyler

Dr. David Palmer and Dr. Hal Richerson

Affirmed by the Court of Appeals of Kansas. See: ___ Kan. App. 2d ___ (2000), ___ P.2d ___. Note: The above date reflects the appellate court decision date, not the original trial date. Reported by kkm.