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).