The case is Clanton v. United States of America (No. 20-2059, 7th Cir., 12/17/2021) and once again, the opinion’s opening paragraph summarizes it better than any of my several attempts:
This case is…an action brought in the district court by Kevin Clanton under the Federal Tort Claims Act. Clanton alleged that nurse practitioner Denise Jordan, an employee of the U.S. Public Health Service, failed to educate him about his severe hypertension or to monitor its advancement, and as a result of that negligent care his hypertension developed into Stage V kidney disease. As a result, Clanton required dialysis and, at the age of 35, a kidney transplant, and is expected to endure further cycles of dialysis and another transplant in the future. Following a five-day bench trial, the district court found the United States liable, rejected the government’s comparative negligence argument as to Clanton, and awarded Clanton nearly $30 million in damages.
Let me say up front that the nurse practitioner’s negligence was egregious, the Government’s refusal to settle the case was inexcusable, and the defense – contributory negligence – was outrageous. The Government claimed that the life-threatening risks of uncontrolled hypertension, which the NP failed to tell the plaintiff about, are risks that our old friend the “reasonable person” would know and understand without medical advice. Unfortunately for the Government, the plaintiff’s attorney engaged three (three!) expert witnesses whose testimony blew that defense out of the water.
The plaintiff sought treatment in 2008 because a pre-employment physical had revealed that his blood pressure was too high, and he was told that he needed medication to lower it before he could be cleared for work. At his first appointment with the NP, she diagnosed him with hypertension and obesity and “gave him Clonidine in the office to lower his blood pressure, which immediately lowered it from 210/170 to 200/130.” (!!!)
The NP gave the plaintiff some sample blood pressure medications and told him to come back in a week, but he didn’t return until two years later, because (unsurprisingly) he felt fine the whole time. He only came back because he was told, after a routine physical from his employer, that his blood pressure was still too high and he needed medical care. The opinion describes what happened next:
He saw Jordan on July 21, 2010, and although the medical records documented that he had not had blood pressure medication during that time, the record does not reflect that Jordan discussed the two-year absence or the risks. Jordan again gave Clonidine to Clanton in the office….She gave Clanton a prescription for blood pressure medication and told him to return in a week but did not order any lab work.
Clanton…had 10 appointments with her over the ensuing 2 years, at which she checked his blood pressure, administered medication for his high blood pressure readings, and prescribed medications for him to take at home….He…stopped taking one of the medications that he believed did not work as well as the others, because, as he explained at trial, he still felt bad when taking it. Jordan never discussed with Clanton whether the medication could be causing the adverse symptoms that he was associating it with, nor did she explain to him that his hypertension could cause such symptoms. She never educated or instructed Clanton about…the risks of uncontrolled high blood pressure (including kidney damage), the fact that he was at increased risk for complications because he is African-American, why it was important for him to stay on his medication and return for appointments even when he felt fine, or the potential consequences of sporadic treatment. Throughout that time, Jordan failed to consult with a supervising physician regarding Clanton’s care – even on the occasion in which she sent him to the emergency room when he experienced blurred vision and the medication in the office did not sufficiently lower his blood pressure. (Emphasis added. I told you the negligence was egregious, didn’t I?)
To make a long story short, the plaintiff was finally hospitalized in December 2012 suffering from shortness of breath, was diagnosed with Stage V kidney disease, was started on dialysis, and had a kidney transplant in November 2015. “As the useful life of a transplanted kidney is ten years, Clanton faces the prospect of returning to dialysis and having one or more additional kidney transplants in the future.”
At trial, the Government argued that the plaintiff “was contributorily negligent for missing follow-up appointments, not taking his medications as prescribed, and failing to check on his lab results.” Under Illinois law, the court had to “determine how a reasonable person in the same position would have acted and compare Clanton’s behavior to that objective standard of care.”
Tasked with applying the reasonable person standard, the district court considered evidence that would establish what Clanton should have known because a reasonable person would be expected to have such knowledge in similar circumstances. The court discussed evidence that was introduced at trial as to what is generally known about hypertension. That included testimony from three expert witnesses, establishing: that patients often feel well when they have high blood pressure, which provides “misinformation” to them as to whether they are ill; that it is common for people to think that if they do not feel sick there is no need for treatment; that high blood pressure is a silent killer, and that patient education is absolutely essential to controlling it, especially in a young person who is facing something that does not produce any symptoms which would let him know what is happening; and that patients “routinely do not understand that medication must be taken daily, even when the patient feels better, and that they have to be educated on the chronic nature of the disease and the risks associated with not following a physician’s advice.” In addition, the court noted that “experts also testified at trial that it is common for hypertension patients to not understand the need to take medications daily and to return to the doctor regularly.” Finally, the court noted that there was no evidence at all in the record indicating that it was common knowledge in the community that there is a causal link between uncontrolled hypertension and kidney damage or failure, and that – to the contrary – the government even presented an expert witness contesting the link between uncontrolled hypertension and kidney damage. (Emphasis added.)
Based on that testimony, the court made the following factual findings:
Thus, the Court finds that a reasonable person would not know or understand the importance of taking medication regularly, monitoring one’s blood pressure, and returning for regular office visits even when he or she feels well. And there is certainly nothing in the record that shows a reasonable person, unless specifically educated or otherwise informed, would know that uncontrolled hypertension may be causing harm even when he or she feels well and could lead to serious, irreversible kidney damage if left untreated.
What happened to this plaintiff is appalling, but at least he was properly compensated for his injuries. Kudos to his attorney for recognizing that expert testimony – overwhelming expert testimony, in fact – was required to defeat the comparative negligence defense.
