Trial Victory for Prominent Emergency Department Director

Lowis & Gellen. partners Mark Smith and Scott Wolfe recently earned a not guilty verdict in Cook County on behalf of a prominent emergency medicine physician and emergency department director. The plaintiff, a 21 year old woman with Down's Syndrome was being treated by specialists for sleep apnea which resulted in vertigo and low oxygen saturations. To cure her sleep apnea, a tonsillectomy and UPPP was done. Following surgery she was determined to be stable and was discharged home. Approximately 12 hours after discharge she became short of breath and passed out after taking medication with codeine. Paramedics transported her to the emergency department where she was seen by Lowis & Gellen's client for low oxygen saturations and abnormal vitals. She was administered IV fluids and oxygen. Her vitals normalized and oxygen saturations improved. Lowis & Gellen's client diagnosed a reaction to codeine medication when the patient was dehydrated and discharged her home. Two days later, the patient again passed out and was taken to the emergency department where she was again treated by Lowis & Gellen's client. During this work-up, a chest x-ray showed severe pneumonia. The patient was admitted to the ICU but expired the following day. No autopsy was performed but pneumonia was listed on the death certificate and testified to as the cause by her treating pulmonologist. She was survived by both parents and three siblings. Plaintiff argued based on the clinical presentation, history of recent throat surgery, history of vomiting and nausea after surgery, shortness of breath, abnormal vitals, low oxygen saturations and elevated white blood cell count, a chest x-ray was required and admission to the hospital was required. Plaintiff argued the two day delay in diagnosis allowed the pneumonia to advance from mild and treatable to severe, and caused the death. Mark and Scott successfully argued the treatment was reasonable. There were no clinical signs of pneumonia. Lung sounds were clear, she had no respiratory distress, shortness of breath, cough, fever, chills, or other signs of pneumonia. Further, her vitals and oxygen saturations immediately improved with a small amount of oxygen, which could not happen with pneumonia. A chest x-ray was not called for. The patient was stable for discharge and was already scheduled to follow with her primary care physician and ENT surgeon in a couple of days. Further, that although she died with pneumonia, she did not die of pneumonia because her oxygen saturations and vitals were stable until her sudden arrest. Based on her vitals and clinical progress, multiple other causes were likely and her good vitals ruled out pneumonia as the cause of death. After a nearly three week trial the jury found in favor of the defense in about two hours.

POLITICAL RETALIATION CLAIM DEFEATED

Attorneys Martin McManaman and Patrick Moran once again won summary judgment for a defendant in a civil rights retaliation case. This time, the plaintiff, a sergeant with a local county sheriff's office, claimed that he was the victim of political retaliation in violation of the First Amendment after he refused to support the incumbent sheriff in his re-election bid. The United States District Court for the Northern District of Illinois disagreed and threw out the plaintiff’s claims, finding that most of the employment decisions at issue were the result of the plaintiff's own misconduct, and that there were legitimate reasons, unrelated to the plaintiff's politics, for the other decisions. Because all of the sheriff's alleged conduct was legitimate and warranted given the plaintiff's behavior, the court concluded that all of the sheriff's actions were in compliance with the First Amendment. The published opinion can be found at 2009 WL 3187788 (N.D.Ill. Sept. 30, 2009).

Jenny Blake has been named one of the "Forty Illinois Attorneys Under Forty to Watch" for 2009 by Law Bulletin Publishing Company, publishers of Chicago Lawyer magazine and the Chicago Daily Law Bulletin. Honorees are chosen in a nomination process that evaluates candidates' career achievements, advancement in their field and community involvement. There are over 20,000 attorneys under the age of 40 in Illinois.

Jenny focuses her practice on hospital and physician medical malpractice defense. Her pro bono efforts have involved federal civil rights, divorce, custody, medical health care rights and federal criminal matters. She has served as second chair in six trials and has tried one case to a successful defense verdict as first chair. She has argued 10 dispositive pre-trial motions in Cook County Circuit Court that eliminated claims against her clients.

Apparent agency, informed consent, nursing documentation, tort reform and the Medical Studies Act are only a few of the topics on which she has given presentations to a wide range of professionals.

To view the entire Law Bulletin article click here..

Lowis & Gellen provides Presentation for Client.

At the invitation of one of Lowis & Gellen’s clients, one of the world’s largest manufacturers, processors and distributors of steel products and services, attorneys Gerald Haberkorn, Robert Leavitt and Simon Hill made a presentation on the U.S. law respecting the sale of goods to an audience of over 50 of the client’s sales and trading personnel.

Topics included the history and background of the Uniform Commercial Code, the formation of contracts (e.g., offer and acceptance), the “battle of the forms”, the UCC’s gap-filler provisions, warranties, breaches of contract and the parties’ rights and remedies.

The all-day session consisted of lectures, lively discussions, and small group breakout sessions with hypothetical scenerios and real-life, client based examples.

In attendance was the client’s Head of Legal, who, afterwards commented that Jerry, Bob and Simon’s presentation was exactly what they wanted, interesting, informative and quite useful. She expects this will greatly assist them in improving their contracting process and in avoiding significant liability down the road. She intends to incorporate the presentation into their web-based educational series.

If you are interested in arranging a similar presentation for your staff please contact Gerald Haberkorn directly at 312.456.2701 or geraldh@lowis-gellen.com.

APPELLATE VICTORY: COURT UPHOLDS DISMISSAL OF WRONGFUL DEATH ACTION AGAINST DOCTOR

Lowis & Gellen appellate attorney Deborah M. O’Brien successfully defended the dismissal of a medical malpractice action before the First District Appellate Court. The appellate court affirmed the dismissal of a complaint alleging that the defendant physician was negligent in diagnosing and treating a fatal heart condition, on grounds that the plaintiff failed to timely satisfy the physician affidavit and report requirements of § 2-622 of the Code. Moreover, the court held that the plaintiff was not entitled to post judgment relief from the dismissal because she failed to prove due diligence in pursuing her action.

Trial attorney Jong-Won Hyun successfully defended the action in the Circuit Court of Cook County before Judge Kathy M. Flanagan.

Appellate Victory: Court Upholds Ruling That Doctor Was Not Qualified As Expert Witness

Lowis & Gellen appellate attorneys Mehreen S. Sherwani and Joan K. Kubalanza (now serving as a judge in the Circuit Court) successfully defended the dismissal of a primary care physician on appeal before the First District Court Appellate Court. In a split decision, the appellate court affirmed the Circuit Court's grant of a motion in limine brought by the co-defendant surgeon, seeking to prevent Plaintiff's expert from testifying that the surgeon violated the standard of care when he chose not to perform a biopsy on Plaintiff's swollen lymph nodes. In affirming the judgment, the appellate court held that Plaintiff's expert was properly barred from testifying that there was a causal connection between the defendants' alleged failure to timely diagnose Plaintiff's lymphoma and her subsequent development of ovarian cancer.

Trial attorneys Mark J. Smith and Scott R. Wolfe successfully defended this case in the Circuit Court of Cook County before Judge Carol Pearce McCarthy. Ms. Sherwani drafted the appellate brief and Mr. Wolfe argued the case before the appellate court. When asked by the Chicago Daily Law Bulletin about the appellate ruling, Mr. Smith stated that it "echoes existing case law." To view the entire Law Bulletin article click here.

Katherine Rowe joins the firm for the month of January from Norton Rose LLP, an international law firm based in London. Katherine trained at Norton Rose and qualified into the Mergers and Acquisitions team two years ago. She regularly acts for both public and private companies (based both in the UK and in Europe) as well as a number of hedge funds on their domestic and cross border M&A transactions. Katherine also provides general corporate advice to various international companies on an ongoing basis, including amongst others, a leading top end European car manufacturer. In addition, she was recently on secondment to BBC Worldwide Limited, the commercial arm of the British Broadcasting Corporation (the principal public sector broadcaster in the UK) assisting with a Competition Commission enquiry. During her time with Lowis & Gellen, Katherine will be looking to further develop the relationship between Lowis & Gellen and Norton Rose to better serve our mutual clients.