ROSENSTENGEL, District Judge:
Kevin Clanton, a 36-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.
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
The Court conducted a bench trial from October 25-31, 2016, and now makes the following findings of fact and conclusions of law.
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.
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.
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.
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.
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.
Nurse Jordan's diagnosis at this visit was "hypertension, obesity, and dyslipidemia" (high cholesterol). Nurse Jordan gave Mr. Clanton Clonidine in the office, which immediately lowered his blood pressure to
Mr. Clanton did not follow-up with Nurse Jordan as instructed.
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.
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. This reading was worse than it had been three weeks earlier; in fact, it was the highest reading thus far. 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 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."
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 medication he had been prescribed was 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.
Mr. Clanton returned to the clinic one week later 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.
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."
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."
Mr. Clanton returned to the clinic a few weeks later. His blood pressure was 130/94, which was the lowest reading 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."
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
At this visit Nurse Jordan ordered laboratory tests for the first time since Mr. Clanton's initial visit to her in 2008.
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. Mr. Clanton's creatinine level was now up to 3.32 mg/dL (from 1.4 mg/dl), his BUN level was high at 29 mg/DL,
On December 22, 2012, Mr. Clanton began to feel extremely ill after dropping
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 Dalal. 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 he followed the advice of Dr. Dalal. As a result, Mr. Clanton was eventually able to do his dialysis treatments at home.
Within months of beginning dialysis, Dr. Dalal recommended Mr. Clanton for a kidney transplant evaluation. Dr. Dalal 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.
Currently, Mr. Clanton takes and logs his blood pressure readings at home. His blood pressure is well-controlled with anti-hypertensive medications, 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. 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.
In addition to Mr. Clanton, his wife Sheena, and Nurse Jordan, 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.
As indicated above, Dr. Dalal was Kevin Clanton's treating nephrologist while he was on hemodialysis from April 2013 to November 2015. Dr. Dalal 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. Dalal 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. Dalal's testimony was his opinion that Mr. Clanton's end-stage renal disease was caused by uncontrolled hypertension.
Dr. Albarcha is an internist who, as indicated above, was employed by SIHF at Windsor 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 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 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.
Kristen Harris was retained by Mr. Clanton as an expert witness. She is a board certified Family Nurse Practitioner and has been providing primary care services as a nurse practitioner for almost twenty years. Harris was unavailable to testify live at trial, so her testimony was presented via deposition.
Harris testified that treating hypertension is a regular and routine part of her practice, and she considers herself an expert in the care and treatment required to properly manage hypertension from a nurse practitioner's standpoint. Harris provided opinions as to the standard of care applicable to Nurse Jordan's care and treatment of Mr. Clanton and Nurse Jordan's deviations from the standard of care, which is fully laid out below in the Discussion section of this Order. For present purposes, however, her testimony in a nutshell is that Nurse Jordan breached the standard of care when she failed to provide appropriate patient education to Kevin Clanton at every visit and to document exactly what education was provided; when she failed to recommend home blood pressure monitoring; when she failed to order annual labs and to respond appropriately to lab results; and when she failed to consult with her collaborating physician about Mr. Clanton or refer him to a specialist.
Dr. Yablonsky is a board-certified internist who testified as a retained expert for Mr. Clanton. He practices in nearby Edwardsville, Illinois; treating patients with hypertension is a regular part of his daily practice.
Dr. Yablonsky provided general information about hypertension and the risks associated with it. He testified about treating hypertension from the perspective of a primary care provider and the aspects of an appropriate treatment plan, such as significant patient education, proper medication, home blood pressure monitoring, lifestyle modifications, careful and close follow-up, and routine lab work to monitor for end-organ damage. Dr. Yablonsky also testified about his experience in working with nurse practitioners and when he expects them to consult with him about hypertensive patients.
Of particular note, Dr. Yablonsky testified that, based on his medical experience, he believes Mr. Clanton's hypertension was controllable with an appropriate treatment regimen. Dr. Yablonsky also offered his opinion that, based on his medical experience, there was a window of time during the course of Mr. Clanton's treatment where his kidney disease could have been avoided altogether had he been given appropriate treatment to bring his blood pressure under control. After the labs showed mild kidney damage, there was another window of time during which the disease could have been reversed or, at least stopped from getting any worse, had Mr. Clanton's blood pressure been brought under control. And even after the labs showed Stage IV kidney disease, the progression of the disease could have been slowed, which could have delayed or avoided Mr. Clanton's need for dialysis.
Dr. Tolins is a board certified internist and nephrologist who testified as a retained expert for Mr. Clanton. He has been a practicing nephrologist in Minneapolis-St. Paul, Minnesota, for the past thirty years, where he treats patients who have developed kidney disease, as well as pre-disease patients who have hypertension that is severe or difficult to control. In addition to caring for patients, he is also the medical director at three dialysis units and manages the overall operation of those units.
Dr. Tolins noted that Mr. Clanton's blood pressure readings while under Nurse Jordan's care were "scary." Dr. Tolins opined that Mr. Clanton's severe hypertension, coupled with his other risk factors, created a complicated clinical case for a nurse practitioner to manage. Consequently, a case like Mr. Clanton's needed to be managed, at a minimum, by a physician — but more likely by a specialist — in order to achieve control of the blood pressure and to avoid the development and progression of kidney disease. Dr. Tolins discussed the aspects of a treatment plan that were needed to achieve control of Mr. Clanton's blood pressure, including patient education, life-long medication, life-long follow-up visits at frequent intervals, home blood pressure monitoring, lifestyle modifications, and laboratory testing every three months. Dr. Tolins also discussed why, in his opinion, it was not fair to label Kevin Clanton as "noncompliant."
Dr. Tolins opined that as a result of Nurse Jordan's violations of the standard of care, Mr. Clanton's blood pressure remained uncontrolled, which in turn caused his kidney damage. He also explained that there was a significant delay in timely diagnosis and appropriate management of his kidney damage, which allowed the disease to rapidly progress. Dr. Tolins agreed
Dr. Tolins went on to opine that Kevin Clanton's life expectancy is 73 years old, and he detailed the medical care that Clanton will require in the future. In particular, Dr. Tolins testified that the half-life of a transplanted kidney is ten years, and he believes Mr. Clanton will require two more kidney transplants.
Jan Klosterman testified live on behalf of Mr. Clanton. She is a Certified Nurse Life Care Planner and has maintained that certification since 1999. Until recently, she served on the Certification Board of the American Association of Nurse Life Care Planners, which is the board that decides whether life care planners qualify for certification. As a Certified Nurse Life Care Planner, she is required to utilize and follow a set of standards and methodology in preparing a life care plan that has been reviewed and approved by other Nurse Life Care Planners.
Ms. Klosterman reviewed all of Mr. Clanton's medical records and also conducted an on-site assessment of Mr. Clanton at his home. She collaborated with Mr. Clanton's expert nephrologist, Dr. Tolins, concerning the reasonable and necessary care for end-stage renal disease, as well as Mr. Clanton's reasonable life expectancy. She also consulted with staff at DaVita Dialysis and individuals at the Barnes transplant program. In formulating her opinions regarding the cost of Mr. Clanton's future medical care, Ms. Klosterman assumed that Mr. Clanton would live to age 73, his donor kidneys would last ten years, and he would need two additional transplants, three years of dialysis prior to second transplant, and five years of dialysis prior to third transplant. As detailed in her written report, Ms. Klosterman ultimately opined that Mr. Clanton's future medical costs will be somewhere between $14,006,000 and $17,395,665 (Exhibit 104).
Dr. Tabak testified as Plaintiff's expert economist regarding the present value of the future medical costs presented in Jan Klosterman's second life care plan (See Exhibits 104, 106-108). Using a discount rate of 0.66 percent, Dr. Tabak reduced the total amounts from $14,006,000 to $12,235,533 on the low end and from $17,395,665 to $15,195,759 on the high end.
Dr. Daniels is an internist who testified as a retained expert for the Government. He is board certified in internal medicine and endocrinology and metabolism, and he works in a local primary care practice in St. Louis, Missouri. As an internist, hypertension and kidney disease are common problems among his patients.
Like his counterpart Dr. Yablonsky, Dr. Daniels testified about treating hypertension from the perspective of a primary care provider and the aspects of an appropriate treatment plan. With respect to Kevin Clanton, Dr. Daniels testified that he had extraordinarily high blood pressures that are rarely seen. Dr. Daniels agreed with Mr. Clanton's retained experts that Clanton's uncontrolled hypertension caused his kidney disease. He further agreed that Mr. Clanton's blood pressure was capable of being controlled. Dr. Daniels, however, believes that Mr. Clanton's
Dr. Daniels also testified about his experience in working with nurse practitioners and when he expects them to consult with him about hypertensive patients. He opined there was no need for Nurse Jordan to consult with her collaborating physician because the physician "was not going to improve Mr. Clanton's compliance, and that was really the main issue." (Doc. 122, p. 91). Dr. Daniels also offered testimony regarding his experience, and defended Nurse Jordan's actions, in obtaining lab results and in documenting what was discussed with patients at visits.
Dr. Swirsky is a cardiologist who testified as a retained expert for the Government. He is board certified in internal medicine, cardiology, and clinical lipidology. He practiced for over twenty years in New Haven, Connecticut, and now practices in Baton Rouge, Louisiana. As a cardiologist, treating hypertension is a routine part of his daily practice.
Dr. Swirsky testified about treating hypertension from the perspective of a specialist. Like the other expert physicians mentioned thus far, Dr. Swirsky testified that severe, uncontrolled hypertension is the only identifiable cause of Kevin Clanton's kidney disease. Dr. Swirsky believes, however, that given Mr. Clanton's race, the severity of his hypertension, and the early age of onset, Mr. Clanton was never going to be able to obtain persistent and optimal control over his blood pressure, and it was "certain" that Mr. Clanton was going to develop chronic kidney disease and require a kidney transplant. Dr. Swirsky also believes that Mr. Clanton's timeline for needing a transplant was "significantly shortened" because he was a non-compliant, African-American patient who didn't seek treatment and stopped taking his medications for large gaps of time.
Dr. Atta testified as the Government's expert nephrologist. He is board certified in nephrology and has practiced and conducted research at Johns Hopkins University in Baltimore, Maryland, for approximately the past twenty years. Dr. Atta estimated that all of his patients have hypertension and kidney disease, and a vast majority of them are African-American.
Contrary to all of the other physicians who testified in this matter, Dr. Atta believes that hypertension was not the cause Mr. Clanton's kidney disease. In fact, Dr. Atta does not believe that hypertension causes kidney disease in African-Americans. He also believes that even if Mr. Clanton's hypertension was well-controlled by medication, it would not have delayed the progression of his kidney disease, much less prevented it. Dr. Atta's ultimate opinion was that no matter what Nurse Jordan did or didn't do, Mr. Clanton was going to progress to end-stage kidney disease.
Dr. Atta opined that Kevin Clanton would live 29.7 years after his first kidney transplant, or until he is approximately 65 years old. Unlike Mr. Clanton's treating physicians and expert nephrologist, Dr. Atta opined that the half-life of a transplanted kidney is twelve years, and he believes Mr. Clanton will need only one more kidney transplant.
Cathlin Vinett-Mitchell was retained by the Government to develop a life care plan
Ms. Vinett-Mitchell collaborated with the Government's expert nephrologist, Dr. Atta, in developing her life care plan. In formulating her opinions regarding the cost of Mr. Clanton's future medical care, Ms. Vinett-Mitchell assumed that Mr. Clanton would live to roughly age 65, his donor kidneys would last twelve years, and he would need one additional transplant, three years of dialysis prior to second transplant, and three years of dialysis at the end of his life. As detailed in her written report, Ms. Vinett-Mitchell ultimately opined that Mr. Clanton's future medical costs would be approximately $3,005,556.88 (Exhibit 227). But her opinion relied on Medicaid and Medicare reimbursement rates for hemodialysis — the most costly element of future care — which the Court has found to be inappropriate (see Doc. 73).
During his case in chief, Mr. Clanton offered portions of deposition testimony from Nurse Jordan, Dr. Albarcha, and Dr. Swirsky. The Government objected to counsel reading these "admissions" into the record.
The Court finds Nurse Jordan and Dr. Bassam Albarcha are government actors in the context of this FTCA case and are considered party opponents, whose deposition testimony may be admitted under Federal Rule of Evidence 801(d)(2). E.g., Anestis v. United States, 52 F.Supp.3d 854, 859 (E.D. Ky. 2014) (holding that statement about deceased veteran made by VA intake clerk during an interview with VA legal counsel was admissible under Rule 801(d)(2)(D) when offered against the Government in FTCA medical malpractice case); Carter v. United States, Case No. 3:11-CV-1669, 2013 WL 1149247, at *3 (M.D. Pa. Mar. 19, 2013) (holding that nurse's statement made during the course of treating the plaintiff was admissible under Rule 801(d)(2)(D) when offered against the Government in FTCA case); Orenstein v. United States, Case No. 2:10CV348 DAK, 2013 WL 595766, at *1 (D. Utah Feb. 15, 2013) (holding that physician's statement during the course of treating the plaintiff was admissible under Rule 801(d)(2)(D) when offered against the Government in FTCA medical malpractice case); Duque v. United States, Case No. 05-1417, 2006 WL 2348533, at *10 n.7 (N.D. Ga. Aug. 9, 2006) (suggesting that
Similarly, the Court finds the deposition testimony of Dr. Swirsky, one of the Government's retained expert witnesses, to be admissible under Rule 801(d)(2)(C) as a statement "made by a person whom the [opposing] party authorized to make a statement on the subject." E.g., Bone Care Int'l, LLC v. Pentech Pharm., Inc., Case No. 08-CV-1083, 2010 WL 3894444, at *10 (N.D. Ill. Sept. 30, 2010) (permitting use of deposition testimony of defendants' experts during Plaintiffs' case-in-chief under Rule 801(d)(2)(C)), citing Glendale Fed. Bank, FSB v. United States, 39 Fed.Cl. 422, 425 (Fed. Ct. Cl. 1997) ("When an expert witness is put forward as a testifying expert at the beginning of trial, the prior deposition testimony of that expert in the same case is an admission against the party that retained him.") and In re Hanford Nuclear Reservation Litig., 534 F.3d 986, 1016 (9th Cir. 2008) (explaining that party could not exclude prior expert testimony that she herself proffered but later determined "was more harmful than helpful" because expert's prior testimony "was an admission of a party opponent under Federal Rule of Evidence 801(d)(2)(C)); Bianco v. Hultsteg AB, Case No. 05 C 0538, 2009 WL 347002, at *12 (N.D. Ill. Feb. 5, 2009) (following Dean v. Watson and allowing defendant to offer into evidence the deposition testimony of plaintiff's expert under Rule 801(d)(2)); Dean v. Watson, Case No. 93 C 1846, 1996 WL 88861, at *3 (N.D. Ill. Feb. 28, 1996) (permitting plaintiff to read portions of defense expert's deposition testimony as admissions under Rule 801(d)(2)(C)); In re Chicago Flood Litig., No. 93 C 1214, 1995 WL 437501, at *11 (N.D. Ill. July 21, 1995) ("A party's ... expert reports often constitute party admissions pursuant to Fed. R. Evid. 801(d)(2).").
The FTCA provides, in pertinent part, that the United States is liable for personal injuries caused by the negligent or wrongful acts of federal employees acting within the scope of their employment "in the same manner and to the same extent as a private individual under like circumstances." 28 U.S.C. § 2674. As an initial matter, the Court finds that Nurse Jordan was an employee of the United States Public Health Service pursuant to 42 U.S.C. § 233(g)(1)(A) and acting within the scope and course of her employment while she was providing medical care and treatment to Mr. Clanton at Windsor (see Doc. 29, para 10), and consequently, the United States can be held liable for her negligence.
Because Nurse Jordan provided her care to Mr. Clanton in East St. Louis, this medical malpractice action is governed by the law of the State of Illinois. 28 U.S.C. § 1346(b); see also Gil v. Reed, 381 F.3d 649, 658 (7th Cir. 2004); Campbell v. United States, 904 F.2d 1188, 1191 (7th Cir. 1990). Under Illinois law, to prove a claim of medical malpractice a plaintiff must show: (1) the applicable standard of care against which the professional's conduct must be measured; (2) an unskilled or negligent deviation from the standard; and (3) an injury proximately caused by the deviation. Sullivan v. Edward Hosp., 209 Ill.2d 100, 282 Ill.Dec. 348, 806 N.E.2d 645, 653 (2004) (citing Purtill v. Hess, 111 Ill.2d 229, 95 Ill.Dec. 305, 489 N.E.2d 867, 872 (1986)).
More specifically, both parties agree that a nurse practitioner's testimony is required to establish the standard of care applicable to Nurse Jordan and any deviations from that standard by Nurse Jordan. (Trial p. 809:12-18); see also Sullivan, 282 Ill.Dec. 348, 806 N.E.2d at 655 ("the health-care expert witness must be a licensed member of the school of medicine about which the expert proposes to testify." (citing Dolan v. Galluzzo, 77 Ill.2d 279, 32 Ill.Dec. 900, 396 N.E.2d 13, 16 (1979)). In other words, a physician who is not a licensed member of the nursing profession is not competent to testify as to the standard of care applicable to nurse practitioners or any deviations from that standard. See, e.g., Sullivan, 282 Ill.Dec. 348, 806 N.E.2d at 657-58, 660.
To the extent that the expert physicians for either party offered their opinions, either at trial and/or in their written reports, on the standard of care for Nurse Jordan and the ways in which she breached that standard, those opinions were not considered by the Court. To be clear, the Court is relying only on the testimony and written statements of Plaintiff's expert nurse practitioner Kristen Harris and the testimony of Nurse Jordan herself to establish the applicable standard of care and any breaches of that standard.
Based on the testimony of Kristen Harris, much of which Nurse Jordan explicitly agreed with, the Court finds that the standard of care applicable to Nurse Jordan when treating and managing Mr. Clanton's hypertension condition required:
Notably, with the exception of Nurse Jordan herself, the United States failed to offer any admissible expert testimony at trial disputing Kristen Harris's opinions about Nurse Jordan's deviations from the standard of care. As explained more fully below, the Court finds Nurse Jordan's testimony that she met the standard of care unreliable, unpersuasive, and entitled to little weight. After weighing all the evidence, the Court finds that the United States, acting by and through its employee Nurse Jordan, deviated from the applicable standard of care in numerous ways.
Nurse Jordan failed to properly educate Kevin Clanton about his disease and the risks that came with it. Starting at the time of her first contact with him, Nurse Jordan did not provide Mr. Clanton with appropriate education and instruction, as required by the standard of care, as well as her employment agreement and SIHF policy. Mr. Clanton testified that Nurse Jordan never explained hypertension to him, including the risk of developing kidney damage if he didn't take his medication daily (even when he was feeling fine), the need for regular monitoring and follow-up medical care, and the fact that he was at increased risk of complications because his is African-American. The Court found Mr. Clanton's testimony highly credible. For example, he testified that there was "no way" he would have ignored Nurse Jordan's instructions to take his medicine and check his blood pressure every day if he'd been told that by ignoring her instructions he could end up on dialysis or even die — leaving his daughters without a father. (Tr. 928). And in one of the most memorable moments of trial, Mr. Clanton was asked on direct examination whether Nurse Jordan ever explained that uncontrolled hypertension could cause him to be unable to get an erection. (Tr. 843). Mr. Clanton said he certainly would have paid attention to such news, and the Court has absolutely no difficulty believing that a 28-year old man would remember being told something like that by a medical provider.
The medical records, which are nearly silent regarding patient education, certainly seem to corroborate Mr. Clanton's testimony. The only documentation in Kevin Clanton's entire chart is a notation about "[h]ealthy eating habits" at the initial visit in June 2008. Nurse Jordan saw Mr. Clanton ten more times during a four year period following that initial visit, but there is not a single indication that she provided any education to him during those visits. She should have provided education at every visit and engaged in an interactive discussion with Mr. Clanton to ensure he understood what she was saying. She also should have provided literature about the disease and its risks, but there is no credible
Nurse Jordan testified that she gave all of the required education to Mr. Clanton. But the Court finds Nurse Jordan's testimony regarding her specific actions and interactions concerning her care of Mr. Clanton, other than those described explicitly within the written medical chart, is not credible and entitled to little weight. Nurse Jordan consistently testified that she had no memory or recollection of Mr. Clanton at all (she couldn't even pick him out in the courtroom, despite the fact that he was the only African-American man present at trial), and she had no specific recollection of any actions or interactions associated with Mr. Clanton's care and treatment. Yet she wants the Court to believe her testimony that she took actions beyond what is memorialized within the Windsor medical chart. This testimony is simply not believable.
The Government suggests that Mr. Clanton should have known about the risks of the disease because his wife, Sheena, for a period of time before (and possibly during) Mr. Clanton's treatment with Nurse Jordan was taking high blood pressure medication for herself. But what Mrs. Clanton was doing and what her medical provider told her does not in any way excuse Nurse Jordan from her responsibility to educate and instruct her patient and to try to ensure that the patient understands and appreciates the importance of her instructions.
The Government is also quick to blame Mr. Clanton for not returning to the clinic for long periods of time, but there is nothing in the record that suggests he understood the need for ongoing medical care and medication. Mr. Clanton testified quite credibly that he did not return on a regular basis because he was feeling well between visits, and he did not believe he needed to go to the clinic when he was feeling well. Furthermore, Nurse Jordan admitted that she should have anticipated (and did anticipate) as early as Mr. Clanton's second visit that compliance might be a problem for him as a hypertensive patient, yet the record does not reflect that she did anything to educate him about the seriousness of his disease or address the issue of real or anticipated noncompliance. In fact, Kevin Clanton testified that Nurse Jordan never actually said the word "noncompliant" to him, much less explained what it meant, nor did she tell him what she thought he was doing wrong or why the gaps in his office visits were problematic. Even the Government's expert, Dr. Swirsky, acknowledged that there is no documentation in any of Nurse Jordan's records that she addressed or was trying to remedy noncompliance concerns with Mr. Clanton.
It is clear to the Court that Mr. Clanton did not understand the seriousness of his blood pressure levels, the chronic nature of his condition, or the consequences of not controlling it. It's not as though Mr. Clanton was reticent to seek out medical treatment. He willingly made multiple trips to Nurse Jordan when he felt ill and needed medication. In other words, he went about treating his hypertension as one would treat an acute or episodic condition, like a headache or a sinus infection; he sought treatment only when he felt poorly. The Court finds Mr. Clanton's behavior to be consistent with a person who does not understand or appreciate hypertension and the significant risk associated with failing to keep it controlled. All things considered, the weight of the evidence leads the Court to conclude that proper and necessary education was not provided and that the standard of care was violated in this respect on numerous occasions.
In addition to the lack of proper education about Mr. Clanton's disease and the risks it presented, Nurse Jordan deviated from the standard of care when she failed to recommend regular home blood pressure monitoring as part of her treatment plan. The medical professionals who testified in this case, including Nurse Jordan, unanimously agreed that Mr. Clanton was a particularly high risk patient because he was an African-American male in his twenties with greatly elevated blood pressure. Consequently, Nurse Jordan should have recommended home blood pressure monitoring at the very first visit (and every one that followed). The Court finds, based upon the evidence at trial, including Mr. Clanton's testimony and the Windsor medical chart, that Nurse Jordan never recommended or instructed Mr. Clanton to perform home blood pressure monitoring as required by the standard of care. This allowed his blood pressure to remain uncontrolled, and it is further evidence that Mr. Clanton was not properly educated about the nature of the disease and the importance of ongoing treatment.
Nurse Jordan also deviated from the standard of care by not ordering appropriate laboratory tests or, when she did order tests, by not taking appropriate action in response to the results. Nurse Jordan acknowledged that the standard of care requires lab work to be ordered, at a minimum, once or twice a year when a patient suffers from severe hypertension. Yet it is undisputed that Nurse Jordan never ordered or obtained lab work in 2010, despite multiple opportunities to do so.
It is also undisputed that Nurse Jordan never obtained the results from the labs she finally ordered in July 2011, which resulted in what is perhaps the most egregious deviation from the standard of care.
Similarly, Nurse Jordan did not make a referral or take any action upon receiving Mr. Clanton's lab results in October 2012. These labs showed Mr. Clanton's kidney damage had worsened even further, and
Nurse Jordan claims that someone from the clinic would have tried to call Mr. Clanton to inform him of the lab results, and if they couldn't reach him by phone, they would have mailed a letter to him. But once again, there is no documentation, and Nurse Jordan has no specific recollection, of any efforts to contact Mr. Clanton immediately following the receipt of the lab results. The evidence only shows that a missed appointment card was mailed to Mr. Clanton over a month later, on November 26, 2012, and again on December 21, 2012. But neither of those cards indicated that a "test results consultation" was needed, even though that's an option provided on the card. Furthermore, simply telling Mr. Clanton that he had missed an appointment is woefully insufficient when the message that actually needs to be communicated is a dire warning that his kidneys are failing.
The Court also finds that Nurse Jordan deviated from the standard of care when she failed to consult with her collaborating physician, Dr. Albarcha, and when she failed to refer Mr. Clanton to a specialist. The standard of care required Nurse Jordan to consult with Dr. Albarcha as early as Mr. Clanton's second office visit in July 2010, by which time he had a two year interruption in any care or medication for his hypertension, and his blood pressure was still at an emergent level. The standard of care also required referral to a hypertensive specialist as early as the third office visit when Mr. Clanton complained of blurred vision and Nurse Jordan sent him to the emergency room. But neither of those things occurred.
In fact, Nurse Jordan never went to Dr. Albarcha or referred Mr. Clanton to a specialist, which the Court finds utterly shocking. Nurse Jordan testified that she knew, at all times, that as a young, African-American man, Mr. Clanton was at high risk for kidney damage. She further testified that she believed the gaps in his medical care elevated his risk even further. Nonetheless, Nurse Jordan chose not to reach out to Dr. Albarcha about Mr. Clanton, even in the face of crisis-level blood pressures at five of the first six visits, documented noncompliance concerns at the second visit, a need for emergency room treatment as of the third visit, documented "uncontrolled" blood pressure as of the fifth visit, and undisputed laboratory evidence of kidney damage.
As an internal medicine doctor, Dr. Albarcha had more experience and expertise in managing hypertension than Nurse Jordan. And he worked in the same building; presumably all Nurse Jordan had to do was walk down the hall. But for some reason, Nurse Jordan did not think that her inability to control Mr. Clanton's blood pressure, her concerns that he was noncompliant, his abnormal laboratory results, or any other aspect of his care necessitated so much as a conversation with Dr. Albarcha, let alone a referral to a specialist. Even Dr. Albarcha testified that under the circumstances, he would have expected Nurse Jordan to consult with him regarding Mr. Clanton's care. And Nurse Jordan admitted at trial that the abnormal lab results in 2011 and 2012 necessitated a referral to a specialist.
Finally, the Court notes that there was some discussion at trial concerning whether
The Court recognizes that Nurse Jordan was attempting to treat Mr. Clanton by providing free samples available at the clinic and appreciates the challenges imposed by treating the demographic of the patients Windsor serves. But the bottom line is simply that the treatment provided to Mr. Clanton never resulted in "normal" blood pressure. Even Dr. Swirsky, the Government's expert, acknowledged that Mr. Clanton's blood pressure was not controlled, and he suffered from severe hypertension throughout Nurse Jordan's care. In other words, even if the medication regimen provided by Nurse Jordan was appropriate, it didn't work, and it needed to be changed. Nurse Jordan should have realized this on her own and at least conferred with Dr. Albarcha on the topic, but possibly referred Mr. Clanton to a specialist. Given the many other deviations from the standard of care during Nurse Jordan's care of Mr. Clanton, the Court does not find it necessary to engage in an in-depth discussion of the medical opinions concerning what was and was not proper medication to treat Mr. Clanton's hypertension.
Under Illinois law, to establish proximate cause in a medical malpractice case, the plaintiff must show "cause in fact and legal cause." Morisch v. United States, 653 F.3d 522, 531 (7th Cir. 2011) (quoting Bergman v. Kelsey, 375 Ill.App.3d 612, 313 Ill.Dec. 862, 873 N.E.2d 486, 500 (2007)). "Cause in fact exists when there is a reasonable certainty that a defendant's acts caused the injury or damage." Morisch, 653 F.3d at 531 (quoting Coole v. Cent. Area Recycling, 384 Ill.App.3d 390, 323 Ill.Dec. 289, 893 N.E.2d 303, 310 (2008)). Legal cause exists when "an injury was foreseeable as the type of harm that a reasonable person would expect to see as a likely result of his or her conduct." Morisch, 653 F.3d at 531 (quoting LaSalle Bank, N.A. v. C/HCA Devel. Corp., 384 Ill.App.3d 806, 323 Ill.Dec. 475, 893 N.E.2d 949, 970 (2008)).
Expert testimony at trial firmly established that uncontrolled hypertension causes kidney disease. In fact, for African-Americans, hypertension is the second leading cause of kidney disease (behind diabetes), according to the American Heart Association, the Centers for Disease Control, and the National Institutes of Health. Thus, it is critically important to control hypertension, particularly in African-American patients, which Nurse Jordan knew. The rate of progression to end-stage kidney disease due to uncontrolled hypertension depends on the severity of the blood pressure. According to the expert testimony in this case, with mild elevation in the range of 160/90, progression to end-stage kidney disease can take five to ten years or longer. If the blood pressure is severe, however, the progression can be quite rapid.
With respect to Mr. Clanton, the Court finds that he suffered from severe hypertension that went uncontrolled, which caused him to develop kidney damage that rapidly progressed to kidney failure.
The Court further finds that Nurse Jordan's multiple and ongoing deviations from the standard of care were the proximate cause of Mr. Clanton's uncontrolled hypertension and kidney disease. The Government theorizes that Mr. Clanton's blood pressure was simply uncontrollable and that he was destined for end-stage renal disease no matter what, which the Court rejects as preposterous. Dr. Albarcha, Dr. Daniels, Dr. Atta, Dr. Tolins, and Dr. Yablonsky all testified that with appropriate care and management, Mr. Clanton's blood pressure was capable of being controlled while he was in the care of Nurse Jordan. The only physician with a contrary opinion was Dr. Swirsky, but the Court is unpersuaded by his opinion, in light of the weight of contrary evidence. Moreover, the facts and evidence show that Mr. Clanton's blood pressure has been and remains well-controlled with appropriate treatment following his kidney transplant.
Expert testimony from Dr. Tolins and Dr. Yablonsky established that if Nurse Jordan had consulted with Dr. Albarcha or referred Mr. Clanton to a specialist with expertise in managing hypertension, such as a nephrologist or cardiologist, in 2008 or 2010, the development of his kidney disease would have been completely prevented. If consultation or referral to a specialist had occurred after the lab results in 2011 showed that mild kidney disease had developed, Mr. Clanton's blood pressure would have been controlled, progression of the disease would have been halted, and further damage to the kidney would have been prevented, avoiding the need for dialysis and transplant. Certainly there should have been consultation and referral by the time the October 2012 laboratory results showed kidney damage. If Nurse Jordan had done so, the progression of Mr. Clanton's kidney disease could have been slowed to the extent he likely could have received a transplant before ever needing
In light of all the evidence in the case, the Court finds that Mr. Clanton was not in any way contributorily negligent. The Government argued at length that Mr. Clanton caused or at least contributed to cause his kidney disease and related damages because he was "noncompliant." But in order to be considered negligent for noncompliance, an individual must first be properly informed and educated about the disease, its risks, the necessity of the treatment regimen, and the likely health consequences of failing to follow the treatment regimen. In other words, a patient must be adequately educated so that he can understand and appreciate the importance of compliance and the dangers of noncompliance. As set forth above, Nurse Jordan failed to provide any education at all. As a result, Mr. Clanton did not understand his disease, the need for daily medication and regular follow-up visits, or the significant risk of failing to adhere to the treatment plan.
While the medical record reflects several significant gaps in Mr. Clanton's visits to Nurse Jordan and two notes by Nurse Jordan that he was "non-compliant," there is nothing in the record that indicates she ever talked to Mr. Clanton when he did show up about what he was doing wrong, why it was important for him to be continuously medicated and to keep all appointments, or the potential consequences of sporadic treatment.
The Government wants to point the finger at Mr. Clanton because during one visit, on September 20, 2010, he signed a "Refusal of Treatment" form saying that he refused blood pressure medication treatment. But that's not entirely true. It appears that Mr. Clanton thought one of the medications was causing him neck pain, and he simply wanted to discontinue that particular medication. He accepted in-office treatment that day, however, and he left with a different medication to take at home. Therefore, the existence of this form is confusing at best and certainly not indicative of contributory negligence.
The Court also notes that during the course of Dr. Dalal's care, Mr. Clanton was a compliant patient who was concerned with, and involved in, his care and treatment.
The Government also blames Mr. Clanton for some of his kidney damage by pointing out that, while he was in Dr. Dalal's care, he sometimes shortened the dialysis treatments he received. But this occurred only on occasion; Mr. Clanton completed approximately 94% of his dialysis sessions as prescribed.
In light of all the evidence, Mr. Clanton simply cannot be blamed for contributing to cause his kidney disease and resulting damages.
Nurse Jordan's deviations from the standard of care proximately caused Mr. Clanton to experience ongoing, uncontrolled severe hypertension during the time period of 2008 through 2012 and to suffer kidney damage beginning in 2011, which progressed to end-stage renal disease. As a result of his kidney damage and end-stage renal disease, Mr. Clanton has sustained significant damages.
First, as mentioned above, Mr. Clanton was on dialysis for approximately two and a half years. When he received dialysis in the clinic, his treatments were three days a week, for four hours a day. When he did dialysis at home, his treatments were four days a week, but the treatment periods were shorter.
Regardless of where dialysis is received, it is known to cause fatigue, cramping, and pain in patients, and Mr. Clanton's experience was no different — the treatments caused cramps in his legs, back, and side. He rated the pain an 8 or 9 out of 10. Dialysis also caused Mr. Clanton to feel drained, tired, lethargic, and dehydrated.
Mr. Clanton and his wife testified that for the two and a half years while he was undergoing dialysis, he was depressed,
As mentioned above, in November 2015, after receiving a phone call that a kidney was available, reporting to the hospital, and undergoing pre-transplant tests, Mr. Clanton was told by the Barnes providers that he was only the backup recipient, and the kidney was going to someone else. Mr. Clanton testified that he re-experienced the same shock and disbelief he felt when he first learned his kidneys were failing. Although angry and disappointed, he tried to remain positive and to not show too much emotion around his daughters, particularly his youngest, who was very upset.
Mr. Clanton knows that, after his current kidney fails, he will likely require at least one more kidney transplant and two additional rounds of dialysis, lasting approximately three to five years each. He has not, however, told his daughters that he will need another transplant in the future because he is not ready to have that conversation. Of course, if he is not fortunate enough to receive a second or third transplant, he faces dialysis for the rest of his lifetime, along with the pain and inconveniences that come with it. Mr. Clanton is entitled to past and future damages for pain and suffering, emotional distress, and loss of a normal life, as set forth below.
Mr. Clanton has permanent scarring and disfigurement from the AV fistula installed on his arm to facilitate dialysis, which the Court personally observed at trial. The Court also observed considerable scarring on Mr. Clanton's abdomen, from the transplant surgery and the post-transplant surgical site infection and dehiscence. For this disfigurement, Mr. Clanton is entitled to $250,000.
Mr. Clanton also has also required substantial medical and surgical care and treatment, including hemodialysis treatment and a kidney transplant. The parties stipulated that as of the date of trial, Mr. Clanton has incurred medical bills in the amount of $2,779,296 for treatment of his kidney damage and that these bills are fair, reasonable, and customary. (See Exhibit 27). The Court adopts the parties' stipulation and finds that all of the treatment and related charges set forth in Exhibit 27 was medically necessary and reasonable for Mr. Clanton's end-stage renal disease.
As a result of his kidney damage and end-stage renal disease, Mr. Clanton continues to incur significant damages and will require future medical and surgical care and treatment. The parties largely agree about the types of medical care that Mr. Clanton will require in the future; specifically, he will need 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. The parties disagree, however, about how long Mr. Clanton can be expected to live, how long each donor kidney will last, and how many additional transplants he will need.
The Government relied on United States Renal Data System ("USRDS") life expectancy
On the other hand, Mr. Clanton relied on the USRDS life expectancy table for the general population (Exhibit 109 — USRDS Table H.13_gen_Pop), which indicates that the average life expectancy for a 35.5 year old black male is 37.9 additional years. Thus, Mr. Clanton can be expected to live to age 73.4. His expert nephrologist, Dr. Tolins, opined that Mr. Clanton's donor kidney can be expected to last ten years. Based on these two numbers, Dr. Tolins believes that Mr. Clanton will need two more kidney transplants. Jan Klosterman used these numbers in developing Mr. Clanton's life care plan.
With respect to life expectancy, the Court does not believe that Mr. Clanton's life expectancy is 65; the table on which that figure is based (Exhibit 111), takes into account a number of "comorbidities" such as diabetes, heart disease, smoking history, drug abuse, lung disease, and liver disease, none of which Mr. Clanton has. Unfortunately, the Court also does not believe that Mr. Clanton is likely to live a normal life expectancy to age 73 given the severity of his health challenges and the early age of onset. As for the length of time his donor kidney will last, the Court credits Dr. Tolins's opinion of ten years because it is shared by Mr. Clanton's treating physicians at BJH-WU. Based on the ten-year life of a donor kidney, Mr. Clanton's age at the time of the initial transplant, and his life expectancy, he will certainly require another transplant in his lifetime, possibly two. The harsh reality, however, is that Mr. Clanton will be lucky to find one more donor kidney and successfully undergo a second transplant, let alone a third.
Regardless of the fact that the Court cannot predict how long Mr. Clanton will live or how many future transplants he will need or receive, the Court found Ms. Klosterman to be highly credible and competent.
In light of all the evidence and the Court's findings regarding Mr. Clanton's life expectancy, the expected duration of his donor kidneys, and the number of transplants Mr. Clanton will receive, the Court finds that Mr. Clanton is entitled to $13,000,000 for future medical care. Also, because the Court also finds that his normal life expectancy is likely reduced as a result of Nurse Jordan's negligence, Mr. Clanton is also entitled to damages in the amount of $2,000,000 for this shortened life expectancy.
Mr. Clanton's dialysis treatments, from April 2013 through November 2015, impaired his ability to work due to the time consumed by the treatments, the fact that the treatments made him not feel well, and the time needed to recuperate between treatments. He was unable to work while on dialysis in the past, and he will be unable to work, while on dialysis, in the future. Nonetheless, Mr. Clanton intends to return to work, while his kidney is functioning, once he is cleared by his doctor to do so.
The parties stipulated before trial that Mr. Clanton sustained past lost wages in the amount of $63,000 and that he will incur future lost wages, reduced to present value, in the amount of $100,000. The Court accepts this stipulation as reasonable.
To summarize, the Court finds that as a proximate result of Nurse Jordan's deviations from the standard of care, Mr. Clanton has sustained, and will sustain in the future, the damages in the following amounts:
Past Pain and Suffering $ 1,500,000 Future Pain and Suffering $ 3,500,000 Past Emotional Distress $ 1,500,000 Future Emotional Distress $ 1,000,000 Past Loss of Normal Life $ 1,500,000 Future Loss of Normal Life $ 2,500,000 Disfigurement $250,000 Past Medical Expenses (stipulated amount) $2,779,296 Future Medical Expenses (present value amount) $13,000,000 Past Lost Earnings (stipulated amount) $63,000 Future Lost Earnings (stipulated amount) $100,000 Shortened Life Expectancy $2,000,000 TOTAL DAMAGES $29,692,296
On August 17, 2016, The Government filed a motion to elect and apply the Illinois statutory periodic payment provisions for any judgment in favor of Plaintiff for future damages (Doc. 75). Plaintiff did not file a response to this motion, but did request a conference to explore the logistics of this provision in the event the Court ruled in favor of Mr. Clanton (Doc. 130). The Court finds it appropriate to grant both motions and work out the details of future payments at a hearing to be held in the near future.
Judgment will be entered in favor of Plaintiff Kevin Clanton and against Defendant, the United States of America, in accordance with this Memorandum and Order. Plaintiff is further awarded his costs.
The Government's motion to elect and apply Illinois statutory periodic payment provisions (Doc. 75) is
A creatinine test is one of the main tests used to evaluate kidney function. Creatinine is a waste product that the kidneys should be filtering out of an individual's blood. As kidney function declines due to disease or damage, the level of creatinine in the blood will rise. A normal level of creatinine in adult males is approximately 0.6 to 1.2 milligrams per deciliter (mg/dL).
Creatinine levels can also be used to calculate the estimated glomerular filtration rate ("eGFR" or "GFR"). GFR is used to assess the stage of kidney disease. Normal GFR is above 90. In Stage I kidney disease, the GFR is normal, but there is other evidence of kidney damage, such as protein or blood in the urine or a structural abnormality of the kidney. In Stage II, the GFR is between 89 and 60. In Stage III, the GFR is between 59 and 30. In Stage IV, the GFR is between 29 and 15. And in Stage V, the GFR is below 15.
