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Clanton v. United States

United States Court of Appeals, Seventh Circuit

November 7, 2019

Kevin Clanton, Plaintiff-Appellee,
United States of America, Defendant-Appellant.

          Argued September 11, 2019

          Appeal from the United States District Court for the Southern District of Illinois. No. 3:15-cv-124 - Nancy J. Rosenstengel, Chief Judge.

          Before Ripple, Rovner, and Barrett, Circuit Judges.


         For four years, nurse practitioner Denise Jordan treated Kevin Clanton's severe hypertension. Jordan, an employee of the U.S. Public Health Service, failed to properly educate Clanton about his disease or to monitor its advancement. Clanton's hypertension eventually developed into Stage V kidney disease requiring dialysis and a transplant, and he sued the United States under the Federal Tort Claims Act for Jordan's negligent care. After a five-day bench trial, the district court found the United States liable. The court determined that Clanton had not contributed at all to his own injuries, noting that Clanton did not understand why it was so important to take his medication and to attend all appointments. The court awarded Clanton nearly $30 million in damages. The government appeals the court's comparative-negligence determination and three aspects of the court's rulings on damages. We agree with the government that the court erred in its analysis of comparative negligence, so we vacate the judgment and remand for the court to apply the proper legal standard. As for damages, however, we find no reversible error.


         Kevin Clanton first visited nurse practitioner Denise Jordan for medical care after high blood pressure caused him to fail a pre-employment physical exam. Jordan, an employee of the Southern Illinois Healthcare Foundation, treated Clanton at two health clinics in East St. Louis, Illinois. At his first appointment, Jordan ordered routine lab work and diagnosed Clanton with obesity and hypertension. On Clanton's second visit, she gave him medication and asked him to come back in one week. Clanton did not return in a week; instead, he failed to return to see Jordan until he showed high blood pressure at another employment-related physical exam two years later.

         During the two years that followed, Clanton returned to Jordan for care ten times. Clanton often went long stretches without returning to see Jordan, and he failed to take his prescribed medicine if he was not feeling sick. For her part, Jordan never explained why it was important for Clanton to take his medications and to attend all appointments even if he was feeling fine. In fact, Jordan never educated Clanton about hypertension, its associated risks, or the factors that increased the risks for Clanton in particular.

         Three years after Clanton's first visit, Jordan ordered new lab tests, but she never reviewed the results. If Jordan had seen the lab work, she would have noticed signs of kidney disease and referred Clanton to a nephrologist. Instead, Clanton did not learn for another year and a half that his hypertension had caused serious damage to his kidneys. A doctor finally diagnosed Clanton with end-stage renal disease, and Clanton began hemodialysis treatment and joined the kidney-transplant waiting list. Clanton eventually received a successful kidney transplant, but he will probably need further rounds of hemodialysis and one or more transplants in the future. Medicare Part B paid for Clanton's hemodialysis and may cover future rounds of hemodialysis as well.

         Clanton sued the United States under the Federal Tort Claims Act for Jordan's negligence because Jordan and her employer are employees of the U.S. Public Health Service. After a five-day bench trial, the district court determined that Jordan had deviated from the standard of care by failing to adequately educate Clanton about the severity of his condition, failing to refer him to a specialist, and failing to consult his lab reports. The court found no comparative negligence on Clanton's part and awarded him nearly $30 million in damages.

         In a motion to reconsider, the government challenged the court's damages rulings on three grounds. First, it argued that the court erred in rejecting the government's election to pay some future damages in periodic installments. Second, the government contended that the court should have conducted a damages comparison when it calculated noneconomic damages. And third, the government argued that the court should have deducted some of its damages obligations because Medicare had covered Clanton's hemodialysis. The district court agreed to conduct a damages comparison analysis, but after doing so, it declined to change its damages award. It refused to reconsider its rulings with respect to periodic payment and partial offset. The government appeals the district court's determination that Clanton was not comparatively negligent and all three of its rulings on damages.


         The government argues that the district court failed to apply the correct legal standard when it evaluated Clanton's comparative negligence. Because Jordan treated Clanton in Illinois, Illinois tort law applies. 28 U.S.C. § 1346(b)(1). We review de novo a district court's determination of state law in an FTCA case. Del Raso v. United States, 244 F.3d 567, 570 (7th Cir. 2001).

         The parties agree on the proper standard to assess a plaintiff's comparative negligence under Illinois law. Courts must apply the familiar reasonable-person standard, an objective test that asks "whether plaintiff ... used that degree of care which an ordinarily careful person would have used ... under like circumstances." McCarthy v. Kunicki,823 N.E.2d 1088, 1101 (111. App. Ct. 2005). But the district court here failed to articulate ...

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