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Clanton v. United States

United States District Court, S.D. Illinois

June 19, 2017

KEVIN CLANTON, Plaintiff,
v.
UNITED STATES OF AMERICA, Defendant.

          AMENDED MEMORANDUM AND ORDER

          NANCY J. ROSENSTENGEL United States District Judge.

         Kevin 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.

         Following 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.

         Jurisdiction and Venue

         SIHF is 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.[1] 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.

         Facts

         The Parties

         Kevin Clanton was born on May 23, 1980. He was raised in the nearby community and graduated from East St. Louis High School in 1999.[2] Mr. Clanton married his high school sweetheart, Sheena Clanton, in April 2016; they have two minor daughters, Kvyanna and Kamorra.

         As a 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 kidney damage.

         As 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.

         Nurse 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.[3] 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.

         Kevin Clanton's Treatment with Nurse Jordan

         The 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.[4] 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.

         Following 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.[5] 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.

         June 12, 2008

         At the 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.[6]

         Nurse 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.

         Mr. Clanton did not follow-up with Nurse Jordan as instructed.[7] 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 medical care.

         July 21, 2010

         At this 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.

         August 11, 2010

         Mr. 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.[8] 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.[9] 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.

         August 20, 2010

         Mr. 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."

         September 20, 2010

         Mr. 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.

         Nurse 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.

         The 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.

         September 27, 2010

         One 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.

         October 1, 2010

         Mr. 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."

         November 29, 2010

         The 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."

         December 13, 2010

         Mr. 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 "as needed."

         July 22, 2011

         On this 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.

         At this visit Nurse Jordan ordered laboratory tests for the first time since Mr. Clanton's initial visit to her in 2008.[10] These lab results revealed slightly elevated serum Creatinine (1.4 mg/dl), elevated urine protein (2), and an eGFR of 77.[11] 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.

         October 26, 2012

         Fifteen 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 later.

         The 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, [12] 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.

         Treatment After Nurse Jordan

         On 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 Clinic.

         On 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.[13]

         Within 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 his body.

         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.

         Fortunately, 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.

         Following 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.

         Currently, 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 chance."

         Mr. 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.

         Fact Witnesses at Trial

         In 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.

         Dr. Rashid Dalai

         As 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.

         Dr. 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.[14]

         Dr. Bassant Albarcha

         Dr. 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.

         Dr. 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.

         Dr. 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 progression.

         Dr. Theodore Ross

         Dr. 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.

         Plaintiff's Expert Witnesses

         Kristen ...


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