United States District Court, S.D. Illinois
AMENDED MEMORANDUM AND ORDER
J. ROSENSTENGEL United States District Judge.
Clanton, a 37-year-old African-American man, filed this
medical malpractice action under the Federal Tort Claims Act
("FTCA") in February 2015. Mr. Clanton alleges that
he received negligent medical care for his severe
hypertension from nurse practitioner Denise Jordan at
Southern Illinois Healthcare Foundation ("SIHF").
He further alleges that as a result of this negligence, he
developed kidney disease, which rapidly progressed to
full-blown kidney failure and left him dependent on dialysis
for two-and-a-half years before he was able to receive a
kidney transplant at the age of 35.
a five-day bench trial in October 2016, the Court issued an
Order setting forth its findings of fact, conclusions of law,
and calculation of damages to be awarded to Plaintiff Kevin
Clanton (Doc. 134). As part of that same Order, the Court
granted the Government's motion to elect and apply the
Illinois statutory periodic payment provisions, but concluded
that a hearing was necessary to determine the method and
manner of applying those provisions (Doc. 134). That hearing
was held on May 22, 2017. In light of the discussion at that
hearing and a thorough review of the periodic payment
statute, the Court finds it necessary to amend and/or
supplement certain aspects of the bench trial order.
Consequently, the original Order entered on March 13, 2017
(Doc. 134) is hereby replaced with this Memorandum and Order.
an entity deemed as a Public Health Service employee under
the Federally Supported Health Centers Assistance Act
("FSHCAA"), 42 U.S.C. 233(g)-(n), and by operation
of the FSHCAA, SIHF and its employees, who are acting within
the scope of their employment, are eligible for coverage
under the FTCA, 28 U.S.C. §§ 1346(b), 2401(b),
2671-80. Therefore, this Court has exclusive jurisdiction
over this action, pursuant to 28 U.S.C. §1346(b)(1),
because Mr. Clanton seeks money damages against the United
States for personal injury caused by the negligent acts and
omissions of Government employees while acting within the
scope of their employment. Venue is proper, pursuant to 28 U.S.C.
§1391(b), because the Government, by and through its
agents, resides within the Southern District of Illinois and
the alleged negligent acts and omissions giving rise to this
claim occurred within the Southern District of Illinois.
Clanton was born on May 23, 1980. He was raised in the nearby
community and graduated from East St. Louis High School in
1999. Mr. Clanton married his high school
sweetheart, Sheena Clanton, in April 2016; they have two
minor daughters, Kvyanna and Kamorra.
child, Kevin Clanton was healthy. He had no significant
health issues other than asthma, which he grew out of around
age 11 or 12. As he grew into adulthood, Mr. Clanton
continued to be generally healthy, seeking out medical
treatment only when he felt bad or was injured, approximately
once every three to five years. Significantly, lab work
completed in April 2004 shows normal kidney function and no
previously mentioned, the focus of this lawsuit is the
medical care Mr. Clanton received from nurse practitioner
Denise Jordan for hypertension. Nurse Jordan earned her AAS
in nursing at Belleville Area College in 1987 and her BSN in
nursing at Graceland College in Lamoni, Iowa, in 1996. In
2000, she obtained her MS in the Nursing Practitioners
Program at Southern Illinois University in Edwardsville,
Illinois. Nurse Jordan is licensed in Illinois and Missouri
and last obtained her Family Nurse Practitioner certification
in Illinois in 2015 and in Missouri in 2016. Her license has
never been disciplined or suspended.
Jordan has been employed by SIHF since 2000 and at the time
of trial was working at Windsor Health Center
("Windsor"), a clinic in East St. Louis, Illinois.
Nurse Jordan functions as a primary medical care provider,
and she treats her own patients for a wide variety of
conditions. She typically sees fifteen to twenty patients a
day at Windsor, and her patient population is predominantly
African-American. Additionally, as a nurse practitioner at
Windsor, Nurse Jordan works under the direction of a
collaborating physician, Dr. Bassam Albarcha, who was, at all
relevant times, also employed by SIHF. When one of her
patients presents with a situation that is beyond her
expertise or training, and she needs assistance in diagnosing
or treating the patient, Nurse Jordan is required to consult
with or refer the patient to Dr. Albarcha.
Clanton's Treatment with Nurse Jordan
relevant facts in this case begin June 2008, when Mr. Clanton
was seeking new employment with Stericycle, and he went to an
urgent care center for a pre-employment physical examination.
The "Physical Assessment" form for this exam notes
two blood pressure readings of 200/135 and
200/137. He was told that his blood pressure was
too high, and he needed medication to lower it before he
could be cleared for work. Significantly, the examination did
not suggest any other medical problems.
the failed physical exam, Mr. Clanton sought medical care for
his high blood pressure at the Quick Care Center in East St.
Louis, Illinois, where he was treated by Nurse Jordan. Nurse
Jordan noted a diagnosis of obesity and hypertension, ordered
routine lab work (i.e., EKG, chest x-ray, CBC, CMP,
HA1C, lipid panel, TSH, and T4), and directed Mr. Clanton to
follow up with her at Windsor the next week. The follow-up
visit was Mr. Clanton's first visit with Nurse Jordan at
Windsor. He had ten additional visits with Nurse Jordan at
Windsor between July 2010 and October 2012. The details of
each office visit are provided here.
first Windsor office visit with Nurse Jordan, Mr. Clanton
presented with blood pressure measuring 210/170, which is
considered severe hypertension. Mr. Clanton's extremely
high blood pressure, combined with his status as a young,
African-American male, put him at high risk for developing
kidney disease. Even Nurse Jordan admitted as much. But at
that time, his kidney function was normal, and there is
nothing that suggests he had kidney disease.
Jordan's diagnosis at that time was "hypertension,
obesity, and dyslipidemia" (high cholesterol). Nurse
Jordan gave Mr. Clanton Clonidine in the office, which
immediately lowered his blood pressure to 200/130. She also
gave him some sample blood pressure medications to take at
home. The medical record also notes "[h]ealthy eating
habits, " which presumably means that Nurse Jordan
talked to Mr. Clanton about this topic. There is no
documentation of any other type of patient education. Nurse
Jordan signed the form that Mr. Clanton needed to be cleared
to return to work, and she told him to come back in a week.
Clanton did not follow-up with Nurse Jordan as
instructed. For approximately the next two years, he
generally felt fine, with no symptoms of high blood pressure,
such as blurred vision, headaches, or shortness of breath.
Mr. Clanton returned to see Nurse Jordan in July 2010 when he
was again told by his employer during a physical examination
that his blood pressure was too high and he needed to seek
visit, Mr. Clanton's blood pressure was 240/150. The
medical record indicates that Mr. Clanton had not had any
blood pressure medication for two years. The medical record
does not reflect that Nurse Jordan discussed the two year
absence with Mr. Clanton or provided any further education at
that time. Nurse Jordan did, however, make a notation in the
chart that he was "Non Compliant." Nurse Jordan
again gave Mr. Clanton Clonidine in the office, which
immediately lowered his blood pressure to 200/110. Nurse
Jordan gave Mr. Clanton prescription blood pressure
medication to take at home and told him to return in a week.
No lab work was ordered, even though Mr. Clanton's last
labs were two years old.
Clanton returned approximately three weeks later, instead of
one week later as instructed. At this third office visit, Mr.
Clanton's blood pressure was 240/160, and he reported
blurred vision. Nurse Jordan gave Mr. Clanton two doses of
Clonidine in the office in an attempt to immediately lower
his blood pressure. When his blood pressure only dropped to
210/140, and in light of the blurred vision Mr. Clanton was
reporting, Nurse Jordan sent him to the emergency
room. Mr. Clanton was instructed to return to
the clinic "PRN, " which means "as
needed." There is no indication that she prescribed or
gave him any more blood pressure medication.
Clanton returned to Nurse Jordan nine days after she sent him
to the emergency room. At this fourth visit, his blood
pressure was 170/110. Although this was better than his last
reading of 240/160, it was still very high. No Clonidine was
given in the office, and no laboratory tests were ordered.
And, even though Nurse Jordan presumed the emergency room had
conducted lab work, she did not obtain the results of that
lab work. The record reflects that Nurse Jordan prescribed
three blood pressure medications to Mr. Clanton and once
again instructed him to return "as needed."
Clanton returned to Nurse Jordan the next month. His blood
pressure was 260/160, and he complained of neck pain.
Apparently Mr. Clanton thought the blood pressure medications
he had been prescribed were causing the pain. Nurse Jordan
never explained to him that it was improbable that the neck
pain was caused by the medication or that the neck pain might
be caused by his high blood pressure.
Jordan again administered Clonidine in the office but did not
indicate whether Mr. Clanton's blood pressure came down.
Nurse Jordan diagnosed Mr. Clanton's hypertension as
"uncontrolled, " prescribed him new blood pressure
medications, and told him to follow up in one week. No lab
work was ordered, and the lab results from the August
emergency room visit still had not been obtained.
medical record from this date also contains a "Refusal
of Treatment" form, which states that Mr. Clanton
refused the prescribed treatment of "BP Meds"
(Exhibit 2, p. 56). The reason for this document is not clear
because, even though Mr. Clanton wanted to discontinue the
medications Nurse Jordan had previously prescribed, he
received Clonidine in the office that day and also left with
new blood pressure medications.
week later, Mr. Clanton returned to the clinic as instructed.
His blood pressure was 260/140, very similar to what it had
been the week before. The record notes that he had stopped
taking one of his medications because he thought it
didn't work as well as the others. Mr. Clanton explained
at trial that he thought the medication wasn't working
because he still felt bad. Once again, Nurse Jordan had Mr.
Clanton take some Clonidine in the office but did not record
a subsequent blood pressure reading to show whether it came
down. She made a one-word notation in the medical record that
Mr. Clanton was "noncompliant." Mr. Clanton was
told to return to the clinic in four days. There is no
documentation that any education or instruction was provided
to Mr. Clanton. No laboratory tests were ordered, and the
August lab results from the emergency room visit were still
not in the chart.
Clanton returned to the clinic a few days later as instructed
for another blood pressure check. At this visit, his blood
pressure was 160/108; again, lower than before, but still
higher than optimal. Nurse Jordan diagnosed him with
hypertension and "a history of noncompliance." She
again prescribed medications and instructed Mr. Clanton to
return to the clinic on "10/11/10."
next visit was not until November 29, 2010. The medical
record from this visit reflects that Mr. Clanton returned for
a refill of his blood pressure medications. His blood
pressure was 160/100, and the only diagnosis was
hypertension. He was again prescribed medication and told to
return "as needed."
Clanton returned to the clinic a few weeks later. His blood
pressure was 130/94, which was the lowest measurement during
his course of treatment with Nurse Jordan. He was again
diagnosed with hypertension and given medication. At this
visit there are conflicting notations in the record that Mr.
Clanton should follow up in "two months/' but also
date, Mr. Clanton made his way to Nurse Jordan once again for
a refill of his medication. His blood pressure was recorded
as 140/80, which is slightly above normal. Although it had
been seven months since Nurse Jordan had seen Mr. Clanton,
there is no indication that this extended absence was
discussed with him or that any other education was given.
visit Nurse Jordan ordered laboratory tests for the first
time since Mr. Clanton's initial visit to her in
2008. These lab results revealed slightly
elevated serum Creatinine (1.4 mg/dl), elevated urine protein
(2), and an eGFR of 77. This was the first sign
of Mr. Clanton's kidney disease. Unfortunately, however,
Nurse Jordan never saw these lab results. For some reason,
they never made it to Mr. Clanton's medical chart, and no
one at Windsor, including Nurse Jordan, did anything to
follow up on their whereabouts. Nurse Jordan admitted that if
she had seen these results, she likely would have referred
Mr. Clanton to a nephrologist at that time.
months passed before Mr. Clanton returned to the clinic. The
record does not reflect that Nurse Jordan in any way
discussed this extended absence with Mr. Clanton when he
arrived at the clinic in October 2012. There is likewise no
reference to the missing July 2011 lab results. At this
visit, Mr. Clanton's blood pressure was relatively
good-140/60 -but he was complaining of dizziness, which can
be a symptom of high blood pressure. Nurse Jordan instructed
Mr. Clanton to continue his medication and return to the
clinic in one month. She ordered lab work again, and
fortunately, this time she received the results a few days
October 2012 lab results showed extensive kidney damage,
which had worsened since the 2011 results. His creatinine
level was now up to 3.32 mg/dL (from 1.4 mg/dl), his BUN
level was high at 29 mg/DL,  and his GFR had decreased to
27 (from 77). At this point, Mr. Clanton suffered
from Stage IV chronic kidney disease. Even Nurse Jordan
admits the 2012 lab results reflected a serious problem with
Mr. Clanton's kidneys. But, unfortunately, neither Nurse
Jordan nor anyone at Windsor or SIHF told Mr. Clanton what
these lab tests showed. And, just like every visit before
this, Dr. Albarcha was not consulted, and a referral to a
specialist was not made.
After Nurse Jordan
December 22, 2012, Mr. Clanton began to feel extremely ill
after dropping Sheena off for her early morning work shift at
Lambert St. Louis International Airport. He was taken by
ambulance to Barnes-Jewish Hospital ("Barnes") in
St. Louis, Missouri, and presented with shortness of breath.
His blood pressure was 275/180, and his serum Creatinine was
5.75 mg/dl. Determined to be in hypertensive crisis, Mr.
Clanton was immediately admitted to the hospital.
Fortunately, the treatment providers at Barnes were able to
stabilize his condition. During that visit, however, Mr.
Clanton learned for the first time from his providers at
Barnes that "high blood pressure" is the same thing
as "hypertension, " and that he had kidney damage
as a result of his uncontrolled hypertension. He was later
discharged with prescribed medications and with instructions
to follow up with the Barnes-Jewish Hospital/Washington
University ("BJH/WU") Medicine Clinic and Renal
February 3, 2013, Mr. Clanton developed shortness of breath
and was again admitted to Barnes. In early February 2013, Dr.
Timothy Yau, a nephrologist at Barnes, diagnosed Mr. Clanton
with Stage V chronic kidney disease due to poorly controlled
hypertension. A few months later, in March 2013, Mr. Clanton
had a fistula surgically inserted to accommodate
hemodialysis, and in early April, he began receiving
hemodialysis under the care and direction of Dr. Rashid
Dalai. Mr. Clanton attended dialysis treatments three times a
week at DaVita Dialysis, and the sessions generally lasted
between three and a half and four hours. Mr. Clanton was a
good patient; he was compliant with and involved in his
dialysis treatments and followed the advice of Dr. Dalai. As
a result, Mr. Clanton was eventually able to do his dialysis
treatments at home.
months of beginning dialysis, Dr. Dalai recommended Mr.
Clanton for a kidney transplant evaluation. Dr. Dalai
completed a form for the federal government (Form CMS-2728)
attesting that Mr. Clanton was in need of dialysis and/or
transplant because he suffered from end-stage renal disease
caused by hypertension. Mr. Clanton was evaluated at BJH/WU
and, on November 4, 2013, he was placed on the Kidney
Transplant Waiting List and added to the United Network for
Organ Sharing (UNOS) waiting list. Mr. Clanton remained on
hemodialysis while on the transplant waiting list. During
this time, Mr. Clanton's kidneys were in end-stage
disease, and control of his blood pressure to target levels
was difficult to obtain because his kidneys were no longer
participating in managing fluid and electrolyte balance in
mid-November 2015, Mr. Clanton received the call that he and
Sheena had been waiting and praying for. They traveled to
Barnes for kidney transplant surgery but, after
pre-transplant testing and preparation, Mr. Clanton was told
he was only the backup candidate, and the kidney was going to
another patient. He was sent home without a transplant.
however, another call came later that night, and on November
17, 2015, at age 35, Mr. Clanton underwent a deceased-donor
kidney transplantation by Dr. Jason Wellen at Barnes. While
the transplant surgery went well, Mr. Clanton's
post-transplant course was complicated by wound dehiscence
requiring wound vac treatment through January 12, 2016.
the transplant surgery and through today, Mr. Clanton
requires multiple anti-rejection and immunosuppressive
medications and follow-up medical care. He has taken the
prescribed medications and followed the advice of his
doctors. Mr. Clanton himself admits things are going well,
all things considered.
Mr. Clanton takes and logs his blood pressure readings at
home. His blood pressure is well-controlled, with readings
around 120/130 over 80/70. Moreover, post-transplant
follow-up renal clinic visits through May 18, 2016, indicate
that the transplanted kidney's function is excellent.
After the transplant, Mr. Clanton's blood pressure is
also well-controlled with anti-hypertensive medications.
Fortunately, he was able to resume many of his former
activities, including working out at the gym, helping around
the house, and playing with his daughters. Overall, he feels
pretty good and is thankful for his "second
Clanton will continue to require future medical and surgical
care, such as immunosuppression medications, various
follow-up medical visits and diagnostic testing, home
healthcare services, counseling services, medical equipment,
one or more future kidney transplants, and dialysis while on
the waiting list for those kidneys.
Witnesses at Trial
addition to Mr. Clanton, his wife Sheena, and Nurse Jordan
(whose testimony is summarized above), the Court heard from a
number of other witnesses, whose testimony is very briefly
summarized here but discussed in greater detail as needed
throughout this Order.
indicated above, Dr. Dalai was Kevin Clanton's treating
nephrologist while he was on hemodialysis from April 2013 to
November 2015. Dr. Dalai is board certified in nephrology and
internal medicine and practices medicine in Belleville,
Illinois. He also serves as the Medical Director of the
Davita Metro East Dialysis Unit.
Dalai did a nice job explaining the dialysis process
generally, as well as the impact of the dialysis treatments
on Mr. Clanton's ability to work and the consequences of
shortening some of his dialysis treatments. Another
noteworthy aspect of Dr. Dalai's testimony was his
opinion that Mr. Clanton's end-stage renal disease was
caused by uncontrolled hypertension.
Albarcha is an internist who, as indicated above, was
employed by SIHF at the Windsor Heath Center and was Nurse
Jordan's collaborating physician while Mr. Clanton was a
patient at Windsor. Dr. Albarcha testified that Nurse Jordan
never consulted with or talked to him about Kevin Clanton; in
fact, Dr. Albarcha did not know Mr. Clanton existed until he
filed this lawsuit.
Albarcha testified, however, that there are a number of
occasions when he would have expected Nurse Jordan to consult
him. Specifically, Dr. Albarcha expected to be consulted
after the third visit in August 2010, when Nurse Jordan sent
Mr. Clanton to the emergency room. He also expected to be
consulted after the fifth visit on September 20, 2010, when
Nurse Jordan diagnosed Mr. Clanton with uncontrolled
hypertension. Dr. Albarcha testified that he should have been
consulted, or Mr. Clanton should have been referred to a
specialist, after the sixth visit on September 27, 2010. And
he testified that Mr. Clanton should have been referred to a
nephrologist after the October 2012 lab results, which showed
worsening kidney damage, were received.
Albarcha opined that with appropriate treatment and care, and
assuming he was compliant with his treatment, Mr.
Clanton's hypertension could have been controlled, and he
could have avoided kidney damage-or at least halted its
Theodore Ross is a physician who was, at all relevant times,
employed by SIHF and served as its Medical Director. He
testified at trial and discussed in very general terms the
requirements of SIHF for a collaborative relationship between
a physician and a nurse practitioner.