Not Guilty Achieved in Favor of Lowis & Gellen’s Client in Colonoscopy Case

Lowis & Gellen partners Mark J. Smith and Scott R. Wolfe attained a Not Guilty verdict in favor of their client, a gastroenterologist, in Cook County, Illinois. The plaintiff, a 50-year-old male, presented to the defendant gastroenterologist for his initial screening colonoscopy. Defendant located a pre-cancerous polyp that he removed and estimated the location as the distal transverse colon. He also found a likely cancerous 1.2 cm sessile polyp which he could not remove and estimated its location at 30 cm from the anal verge, likely in the sigmoid colon. The defendant tattooed the area to make finding the very small lesion easier. Surgery for removal of the cancer was arranged. Based on the colonoscopy report and location estimates, he believed the cancer was in the sigmoid colon. However, the surgeon could not find the tattoo so he removed the patient’s entire sigmoid colon. Pathology revealed the tissue removed contained no tattoo and no cancer. A repeat colonoscopy at another institution revealed the tattoo and the cancer remained in the patient and was likely in the distal transverse colon. The second surgeon performed a completion colectomy, removing the entire remainder of the plaintiff’s colon. Had the sigmoid colon not been previously removed, the second surgeon may have salvaged the sigmoid. If the sigmoid could have been salvaged Plaintiff would likely have better control of bowel movements. Plaintiff now has 20 plus bouts of diarrhea or loose stools per day with frequent incontinence, has never returned to work, cannot engage in any normal activities or socializing and cannot sleep normally as he wakes frequently due to loose stools. Plaintiff alleged Defendant negligently described the location of the two lesions found on colonoscopy. Specifically that the cancer tattooed was actually in the transverse colon and the polyp removed was in the sigmoid colon. Plaintiff claimed the incorrectly described lesions caused an unnecessary operation and unnecessary removal of undiseased tissues that should have been saved. Plaintiff then had to undergo a second operation to remove the cancer. Plaintiff is now left with so little colon he cannot control his loose stools whereas if he had the sigmoid in tact, he would likely have well formed stool and could work and have a normal life.



Mark and Scott argued the colonoscopy was performed well. During a colonoscopy distance and locations are mere estimates. They argued the defendant utilized reasonable estimates and then went above and beyond the standard of care by tattooing the area. All experts, including plaintiff’s retained expert agreed the tattoo should have made locating the cancer 100% accurate, regardless of the verbal description in the report. Defendants further argued a complete colectomy should have been done anyway due to the patient’s history of cancer, family history of colon polyps and young age. Defendants also denied plaintiff was as severely disabled as claimed and argued he should be able to work.



Plaintiff asked for $2.9 Million against Lowis & Gellen's client. The jury found in Mark & Scott's favor in under two hours.



For more details about this case or any questions regarding Lowis & Gellen’s professional malpractice experience, please contact Scott Wolfe at swolfe@lowis-gellen.com

Lowis & Gellen LLP Attorney Charlotte Felber was sworn in to practice law in the state of New York on June 22, 2010.

In the Canada-US Business Council of Chicago's Spring 2010 Newsletter, Lowis & Gellen LLP Associate Attorney Charlotte Felber briefs the Canadian business and economic landscape in her article entitled, "Canadian Business & Economic Update." Lowis & Gellen LLP is a member of the Canada-US Business Council of Chicago, and Ms. Felber sits on the editorial board for the Council's quarterly newsletter.
Click here to view Newsletter.

4 Lowis & Gellen attorneys were selected by their peer's to be on the list of the "Top Insurance Defense firms in Illinois"and will be recongnized by Leading Lawyers Network.

Lowis & Gellen Attorney is Speaker at CBA Committee Meeting

James Froberg, a member of Lowis & Gellen’s Corporate Practice Group, participated as a guest speaker at the Chicago Bar Association’s Commercial Finance & Transactions February 2010 meeting to discuss Lender Liability Issues at the CBA’s headquarters in Chicago, Illinois.

With financial adversity and hard times continuing to affect the national economy broadly it is not unexected that there is renewed focus on lender liability in the commercial and consumer market place. Lender liability is made up of a body of common and statutory law covering a broad spectrum of claims. Claims may arise under the a wide array of theories as well as new theories as this area of the law evolves: For purposes of the Committee’s discussion of Lender Liability the focus was on on Common Lender Liability Theories in Contract and Tort in commercial transactions. The presentation also discussed the importance of The Illinois Credit Agreements Act in defusing certain elements of lender liability in Illinois as well as the importance of periodic portfolio review and the use of forbearance agreements in mitigating or avoiding liability. The discussion also covered a few recent cases addressing lenders from liability under a couple of old and new theories. The presentation also addressed some strategies for managing and reducing the risks of lender liability.

Lowis & Gellen’s Corporate Practice Group represents public and private companies in connection with a wide variety of transactions, including mergers, stock purchases and asset acquisitions, divestitures, leveraged buyouts, restructurings and other transactions involving changes in corporate control. For more information on Lowis & Gellen’s Corporate Practice Group, please contact James Froberg at jfroberg@Lowis-Gellen.com or (312) 456-2718.

Lowis & Gellen Get Involved in Rugby

This St Patrick's Day weekend (13/14 March) sees Lowis & Gellen sponsoring an invitational rugby team in the annual Savannah Shamrocks RFC St Patrick's Day Tournament in Savanah, Georgia. The tournament is a prestigious one, having first been run in 1979 and, continuing to grow annually, it now attracts some of the best teams from within the USA and further afield.

The team, organised by the Chairman of Lowis & Gellen's EU Committee, Cary Depel, has played in the tournament for several years now, winning it for the last 3. Originally from Indiana, Cary has lived in the UK for many years and was a late convert to rugby. He decided a few years ago to organise an invitational side, "The Willing", to play in the Savannah tournament and various others around the world. Players who have played (and will be playing) for the Willing come from all four corners of the globe including Australia, New Zealand, South Africa, England, Wales, Ireland and France. With Cary still suiting up, you can also add the USA to that list. In addition, James Kindon, a UK qualified lawyer who is currently working in our Chicago office will also be playing.

Lowis & Gellen think this is a great weekend with a difference - an oportunity to meet people from all over the world, mingle in a relaxed environment and enjoy the weekend making new friends. Any clients or contacts of the firms who would be interested in meeting up with Cary, James and the team should contact either Gerald Haberkorn or James Kindon in our Chicago office.

This year will see an extension of Lowis & Gellen's sponsorship to allow a second "over 35" team to be entered into the veterans tournament. This will allow some of our older contacts and clients who have decided to enjoy the weekend with us to decide whether they also want to have a run around and find out (in a slightly more relaxed environment than the main tournament) what rugby players the world over would say they have been missing.

We look forward to seeing you there.

TRIAL VICTORY FOR CHICAGO INTERNIST & GROUP

Mike Code and Jamie Leavitt earned a not guilty verdict in Cook County on behalf of a Chicago Internist and his Group. The decedent, a 57-year old male smoker, treated with Lowis & Gellen’s client between May of 2002 and September of 2002 during which time he had intermittent episodes of hematuria (blood in urine). He was diagnosed with a urinary tract infection (UTI) and treated with antibiotics. After being treated for the UTI, the patient was seen and complained of “dark urine” which was thought to be due to dehydration. In February of 2003, the patient was seen at the same office by another internist, and gave a history of hematuria every few days for the previous year. The patient was sent to a urologist for a urology work-up. After obtaining a CT scan in April of 2003, the patient was found to have what was likely a cancerous tumor in the kidney and another possible tumor or blood clot in the bladder. The urologist discussed the two lesions and the possibility both could be malignant. The patient agreed to undergo a right nephrectomy but wanted to delay a cystoscopy, which is used to diagnose bladder cancer. The patient eventually underwent the cystoscopy in later November of 2003 when he was unable to urinate and had a Foley catheter inserted in an ER. The cystoscopy revealed a malignant tumor which had spread into the bladder wall, the fat and seminal vesicles, and multiple lymph nodes. The patient underwent radiation but would not submit to chemotherapy. The patient died on August 12, 2004 from complications of bladder cancer. Injuries included pain, suffering, and death. The plaintiff contended that Lowis & Gellen’s client should have made a referral to a urologist and should have investigated the dark urine. The plaintiff further contended the urologist should have done an immediate cystoscopy and urine cytology.

Mike and Jamie successfully argued the standard of care did not require Lowis & Gellen’s client to send the patient to a urologist at any time as the patient’s symptoms appeared to have resolved with antibiotic treatment. Mike and Jamie further argued Lowis & Gellen’s client’s treatment was reasonable and the patient did not exhibit signs and symptoms of bladder cancer. The Plaintiff asked for an award of $4.9 million. After a three week trial, the Jury found in favor of the defense.

James Kindon today joins Lowis & Gellen for 3 months. James is qualified to practice law in England & Wales and will be assisting the coporate team at the firm. James qualified in October 2005 and started his training contract in 2003 at Field Seymour Parkes in Reading, England. From there he moved to London and has practiced at Salans, an international law firm with a strong presence in Russia, the CIS and Eastern Europe and was latterly with Addleshaw Goddard, a top 15 firm in the UK. He qualified as a corporate lawyer and his main areas of specialism are mergers & acquisitions and group re-organisations. He also provides general corporate advice on an ongoing basis to companies registered in England & Wales.

James has recently worked on the acquisition of a specialist finance house in London by a Swiss company backed by finance from the Arabian Gulf and, for the same client, the acquisition of a football club in the UK and the prepartion of documents in relation to an unsuccessful bid to acquire the BMW Sauber Formula 1 racing team. Previous deals James has been involved with include acting for the drinks company Diageo in a re-organisation of it's African interests followed by assisting in the preparation of all the documentation required to implement a joint venture between Diageo, Heineken and Namibian Breweries in South Africa.

During his time at Lowis & Gellen James will be looking to assist the corporate team, in particular in relation to any issues which arise for clients in the UK.