CHICAGO – U.S. Seventh Circuit appellate judges who balked at a $29.6 million judgment against the government in a kidney damage case last year cast off their doubts and approved that amount on Dec. 17.
They affirmed Chief District Judge Nancy Rosenstengel of East St. Louis, who found that the conduct of plaintiff Kevin Clanton did not contribute to his disease.
They found no error in Rosenstengel’s decision to lay all responsibility on U.S. Public Health Service nurse Denise Jordan.
They found Jordan’s failure to educate Clanton about high blood pressure caused him to see it as a condition that medicine quickly relieved. They found reasonable persons wouldn’t perceive risk in the absence of symptoms.
They also compared Clanton’s experience to looking both ways before crossing a street and being struck by an airplane because he didn’t look up.
Clanton first saw Jordan at Quick Care Clinic in East. Louis in 2008, at age 28, after a physical examination for a job detected high blood pressure.
She gave him clonidine, which lowered his pressure, and she cleared him for work.
In 2010, his employer detected high blood pressure again and Jordan gave him clonidine and prescriptions.
Tests revealed kidney disease in 2011, but Jordan didn’t see the results.
Tests also revealed extensive kidney damage in 2012, but no one at the clinic told Clanton or referred him to a specialist.
Two months later, short of breath, he went to a hospital and learned the truth.
He received a kidney by transplant in 2015.
In that year Stephen Telken, Michael Marker, and Troy Walton of Edwardsville sued the United States for Clanton.
At bench trial in 2017, the government claimed he didn’t always take his medicine or keep his appointments.
Rosenstengel found he couldn’t be negligent unless he was properly informed about risk and the necessity of treatment.
She found a patient must be educated and that, “Nurse Jordan failed to provide any education at all.”
She awarded about $16 million in economic damages and about $14 million in other damages.
On appeal, Seventh Circuit judges remanded the judgment so Rosenstengel could consider possible contributory negligence on Clanton’s part.
They found she relied on his knowledge rather than that of a reasonable person.
They found he had external clues that he was seriously unwell.
Upon remand, assistant U.S. attorney Laura Jones argued that Clanton’s actions made him more than 50 percent negligent.
In Illinois, such a finding would bar any recovery.
In April 2020, Rosenstengel again found no negligence on Clanton’s part.
Rosenstengel wrote that she made specific findings about what he knew and didn’t know, and nothing warranted a change to her conclusions.
She found a reasonable person wouldn’t understand the importance of taking medication regularly, monitoring blood pressure, and returning for regular office visits even when he or she feels well.
She found that from failure at two exams, “a reasonable person would only have learned that you cannot pass a work physical with a high blood pressure reading until you see a health care provider and take a single or short term dose of medications given to you by that health care provider.”
“There is nothing from these facts that would tell a reasonable person that hypertension is a chronic health condition with serious consequences if it is not consistently monitored and treated on a daily basis for his lifetime,” she wrote.
On appeal, Seventh Circuit judges found the government didn’t challenge any of Rosenstengel’s findings.
“If a pedestrian were crossing a street, a reasonable pedestrian would be expected to appreciate the danger posed by traffic, and to take action such as looking both ways before proceeding, to ensure that the risk was avoided,” wrote Circuit Judge Ilana Rovner.
“If that pedestrian while crossing the street were then struck by a plane, however, a court would not find contributory negligence in the failure of the pedestrian to also look up before proceeding.”
Circuit judges Michael Kanne and Kenneth Ripple concurred.