LOWIS & GELLEN ATTORNEYS ONCE AGAIN WIN MOTIONS FOR SUMMARY JUDGMENT IN THREE MEDICAL MALPRACTICE CASES

Partner, Jenny Blake, and appellate attorney, Mehreen Sherwani, once again have won summary judgment in three medical malpractice cases. In the first case, the plaintiff filed a wrongful death and survival action against a hospital predicated on the care and treatment her mother received from the hospital's alleged agents, a primary care physician, a treating nephrologist, and an emergency room physician. Ms. Blake and Ms. Sherwani successfully argued that the patient either knew, or should have known, that the physicians taking care of her were independent contractors, and not employees or agents, of the hospital. They argued the patient had a long history with the primary care physician and nephrologist prior to the admission at issue, and the patient knew before she presented to the hospital that she was going to see them there. With respect to the emergency room physician, they argued the hospital placed the patient on notice that she was not an employee or agent of the hospital because the patient had signed a consent form informing her that the physicians providing medical services to her were not employees or agents of the hospital, but rather, were independent contractors. Ms. Sherwani argued the motion in DuPage County, and the trial court granted summary judgment in favor of the hospital.

In the second case, the plaintiff filed a medical malpractice action against a hospital, seeking damages arising out of the death of her husband following multiple surgeries performed at the hospital. The plaintiff alleged the surgeons who had performed the surgeries were apparent agents or employees of the hospital. Ms. Blake and Ms. Sherwani successfully argued that, during his admission, the decedent or his family had signed several consent forms which clearly informed them that the surgeons were independent contractors and not employees of the hospital. The consent forms also contained statements which provided that the individual signing the form had not sought treatment from any independent contractors based on their association with the hospital. Further, as the trial court noted, there was no evidence that the hospital did anything to hold out these physicians as its employees or agents. The trial court further rejected the plaintiff’s argument that the decedent’s mental or physical condition impaired his ability to understand the consent forms, as he had signed the same consent form on prior occasions, and his wife had signed the consent form prior to his first surgery, and his son had signed the consent form prior to his second surgery. Based on the strength of the briefs alone, the trial court in Cook County granted summary judgment in favor of the hospital.

In the third case, the plaintiff filed a medical malpractice action against a hospital predicated on the care and treatment his mother received at the hospital following a fall which occurred without anyone present. Ms. Blake and Ms. Sherwani argued that the plaintiff’s expert’s opinions lacked an adequate foundation or were otherwise baseless. They further argued that the only criticism that did not suffer from these infirmities was the nurse’s claimed failure to check on the patient every 15 minutes. With respect to that criticism, Ms. Blake and Ms. Sherwani argued that the expert’s opinion that the nurse’s failure to check on the patient every 15 minutes caused her fall was based on pure speculation. The undisputed evidence showed no one was in the room when the patient fell, and no one knew how, when, or what caused her to fall. Ms. Blake successfully argued the motion in Lake County, and the trial court granted summary judgment in favor of the hospital, thereby entirely disposing of the case.

Volunteer Lawyers for Veterans is the Yellow Ribbon Fund’s newest initiative. Over the years, it has been found that some injured service members need legal support. This has been recognized after they leave the service, as well. Support on issues such as divorce, child custody, bankruptcy and some criminal law have been requested by injured service members over the years.

VLV has been created to bring together attorneys from all areas of specialization to help veterans with their legal needs on a pro bono basis. In addition to the needs noted above, VLV attorneys could help guide veterans with needs in real estate, starting small businesses or other legal needs.

The fundraiser at the NYAC on Wednesday, November 9th had over 100 people in attendance and raised nearly $100,000. General Stanley McChrystal was the keynote speaker, they honored several service members (at least two had been injured) and the 319th Army band performed.

Lowis & Gellen Client Sells His Business Interest

Lowis & Gellen represented the seller (the “Seller”) in the sale of his 20% interest in a printing business and the building in which the business is located to a private investor. This sale of LLC membership interests involved a significant cash payment together with a promissory note, employment agreement and a consulting contract with pay-outs tied to sales and revenues for the subsequent five years.

The Lowis & Gellen team consisted of Gerald Haberkorn and Robert Leavitt, who exclusively handled for the Seller all legal aspects of the transaction including the structuring, drafting and negotiating of the sale, employment and consulting documentation.

For more information, please contact:
Robert Leavitt, (312) 628-7199
rleavitt@lowis-gellen.com

Mr. Cahill’s article, "Commodity Supply Agreements Are Swap Agreements: A Counter-Intuitive But Quite Real Safe Harbor From Preference Avoidance,” has been published in International Corporate Rescue and analyzes a defense for commodity suppliers against the avoidance and recovery of transfers to such suppliers from debtors under the Bankruptcy Code.

Section 546(g) of the Bankruptcy Code exempts from preference or constructive fraudulent transfer the avoidance of any transfer made pursuant to a swap agreement with the Debtor. The Code's financial derivative safe harbor provisions and related definitions are broadly-worded. The Code's definition of "swap agreement" includes "commodity forward agreement." A "commodity forward agreement" is, for the Fourth Circuit Court of Appeals and other courts, a commodity supply agreement for future physical deliveries, which is used as a hedge.

Thus, creditors of United States bankruptcy debtors who supply or receive oil, natural gas, steel, polypropylene or any other commodity may do so pursuant to a contract that can be construed as a "swap agreement" that supports a total defense to avoidance of transfers received from the debtor. Implications with respect to other safe harbor provisions of the inclusion of "commodity forward agreement" within the definition of "swap agreement" will be the subject of a future paper.

View the entire article click here..

L&G Chosen to Conduct Employment Training for Circuit Court of Cook County

Rob Smeltzer, the partner in charge of the firm's employment law practice, will conduct the training of approximately 150 managers of the Circuit Court of Cook County, Illinois, one of the largest unified state court systems in the country. The training will commence in October of this year and center on the legal requirements of various state and federal employment laws, including but not limited to sexual harassment, religious and disability accommodation, the FMLA and overtime laws.

Lowis & Gellen Attorneys Negotiate Agreement To Sell Railroad For $90 Million

Lowis & Gellen's client, Permian Basin Railways, Inc., signed an agreement to sell 100% of its stock in Arizona Eastern Railway Company to Genesee & Wyoming, Inc. for $90.1 million in cash, subject to adjustment for final working capital. The Lowis & Gellen team of Gerald Haberkorn, Robert Leavitt and Mehreen Sherwani handled all legal aspects of the transaction including structuring, drafting, and negotiating the purchase documentation. The acquisition is subject to customary closing conditions and is expected to be completed by the end of the third quarter of 2011.

For more information about Lowis & Gellen's mergers and acquisition practice, please contact: Gerald Haberkorn, (312) 456-2701

To read the press release, click here.

Lowis & Gellen LLP was selected as a Lawyers World Global Award Winner 2011

The Lawyers World Global Awards 2011 recognize a select number of leading professional firms, across the globe, for their individual areas of specialization, within their geographical location.

The award recognizes the organizations & advisers that have performed to exceptional levels during the most difficult period that the global economy has experienced for decades.

Lowis & Gellen LLP wins $1.1mm verdict for Iowa Pacific Holdings

Rob Smeltzer and Brian Orr of Lowis & Gellen obtained a jury verdict of more than one million dollars for their client, Iowa Pacific Holdings, LLC, in the U.S. District Court of Colorado last week. The jury held that Iowa Pacific had a valid and enforceable oral agreement to crew a Ski Train between Denver and Winter Park, CO, even though the parties had yet to sign a final written contract. Iowa Pacific alleged that Amtrak anticipatory breached the oral agreement by indicating it would not provide the crew unless Iowa Pacific first agreed to insurance and indemnity requirements well above those initially agreed upon, and the jury concurred. A link to the Associated Press report follows.

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LOWIS & GELLEN LLP FIRST QUARTER 2011 EMPLOYMENT LAW UPDATE

In late 2010 and early 2011, the U.S. Supreme Court issued three particularly noteworthy decisions in the employment law arena, all of which could be read to expand the protections that employees have under various federal statutes such as FLSA and Title VII. In particular, these decisions illustrate the strong protections available to employees who lodge internal or external complaints of potential discrimination – yet again proving the adage that weak discrimination claims can make strong retaliation claims when employers mishandle them.

Kasten v. Saint-Gobain Performance Plastics Corp, involved the anti-retaliation provision of the Fair Labor Standards Act (“FLSA”). [Note: the FLSA provision on its face only purports to cover complaints that are actually "filed." 29 U.S.C. § 215(a)(3). On the other hand, Title VII's provision more broadly purports to outlaw retaliation for "opposing any [unlawful] practice." 42 U.S.C. § 2000e–3(a)]. In Kasten, the Supreme Court overturned the U.S. Court of Appeals for the Seventh Circuit's judgment that only written complaints to the employer could fall within the ambit to of the FLSA provision, because only written formal complaints could be "filed." The Supreme Court disagreed, holding that plaintiff's oral complaints could be covered by the FLSA's anti-retaliation provision if they provided the employer with fair notice and involved some of assertion of rights protected by the statute. Kasten therefore reemphasizes the need for employers to adequately document and investigate even oral or informal complaints of discrimination or retaliation.

In Staub v. Proctor Hospital, the Supreme Court unanimously recognized and set forth the parameters of the "cat's-paw" theory of liability. Staub involved a discrimination claim under the Uniformed Services Employment and Reemployment Rights Act ("USERRA"). [Note: USERRA has a liability provision mirroring Title VII's, but prohibits using military status as "a motivating factor" in adverse employment decisions]. The cat's paw theory is used by plaintiffs in cases where there is proof that an employee with a discriminatory animus against him (or knowledge of his "opposition to unlawful conduct") influenced another's employment decision, but no proof that that decisionmaker bore the same animus. Thus, in the cat’s paw scenario, the animus of the influencer may be in essence imputed to the decisionmaker.

The Seventh Circuit had previously held that plaintiff Staub could not prove discrimination on the basis of the anti-military animus of his two supervisors (who were consulted about, but did not make the final decision to fire him) unless he could show that those supervisors exerted "singular influence" over the final decisionmaker. According to the Seventh Circuit, plaintiff could not do so, because the ultimate decisionmaker conducted an independent investigation and did not solely rely on information provided by the two supervisors who had a discriminatory animus.

The Supreme Court disagreed, holding that the fact that Staub’s supervisors did not make the decision to fire him was immaterial and that all plaintiff had to show was that the supervisors’ actions were a proximate cause of the decisionmaker's decision to terminate him. Specifically, the Court held that if a supervisor performs an act motivated by discriminatory animus, and “if that act is a proximate cause of the ultimate employment action, then the employer is liable." Staub thus greatly impairs an employer’s ability to defend discrimination suits on the basis that the final decisionmaker relied on the recommendations of others without actual knowledge of their true motives and/or did not know that plaintiff had engaged in protected activities prior to the time the decision was made. This in turn, again reiterates the need for employers to: document employee performance problems in advance; adopt and train employees with respect to formal policies that seek to uncover and address potential discrimination; and consider whether a person recommending adverse employment actions may have ulterior/illegal motives.

Finally, in Regalado/Thompson v. North American Stainless, the Supreme Court expand Title VII’s anti-retaliation provisions to cover people who didn't actually complain about potential discrimination, but did have a relationship with an employee who did. Regalado/Thompson involved two fiancées who worked for the same employer. When Miriam Regalado filed an EEOC charge claiming that the employer discriminated against her on the basis of her sex, the employer was apparently dissuaded from retaliating against her directly. Instead, the employer chose to take it out on Regalado's fiancé, Eric Thompson. The lower courts could not agree whether Thompson was entitled to sue under Title VII's retaliation provisions because he never engaged in activity protected by Title VII (e.g. opposition to unlawful conduct or participation in another's complaint). In a rare unanimous decision, the Supreme Court decided that he could, holding that allowing employers to retaliate against people like Thompson would just as easily dissuade an employee like Regalado from exercising her rights as would retaliation directed at her. Regalado therefore illustrates the importance of adopting an internal anti-retaliation policy and adequately training employees so that they understand the employer will not tolerate retaliation of any kind.

For more information about Lowis & Gellen LLP’s Employment Law Practice, please contact Partner Rob Smeltzer at (312) 456-7952 or email him at rsmeltzer@lowis-gellen.com.

Shellie Karno recently published a textbook chapter entitled "Nursing Malpractice, Negligence and Liability". The textbook,"Law for Nurse Leaders" is a comprehensive guide to current and emerging health law issues and an essential source of legal information for hospital executives, administrators, practicing nurses and nurse educators. Ms. Karno also contributed a Question and Answer segment to the text.

Lowis & Gellen welcomes...


Clemon Ashley

Mr. Ashley is an associate attorney with Lowis & Gellen LLP. He concentrates his practice in corporate transactions and commercial litigation. Prior to joining Lowis & Gellen LLP, Mr. Ashley served as law clerk to the Honorable Vicki Miles-LaGrange, Chief U.S. District Judge for the Western District of Oklahoma, where he provided direct litigation support on complex legal issues. Mr. Ashley previously served as a business analyst at Aetna, Inc., a Fortune 500 health insurer, where he exceeded corporate objectives in delivering marketplace and cross-functional solutions in the area of health informatics.

Mr. Ashley is admitted to practice in Illinois and received his law degree from Loyola University Chicago, where he completed a Certificate in Health Law and served as an editor of the Annals of Health Law, International Law Review, and the Public Interest Law Review. He earned his Master of Public Health from Emory University and his bachelor’s degree from the University of Tulsa.

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Christopher M. Cahill

Christopher M. Cahill is an experienced corporate restructuring lawyer. He has represented secured lenders in middle market cases, including negotiating cash collateral and DIP financing orders, litigating lien defense, and objecting to chapter 11 plans (as well as negotiating consensual resolutions of chapter 11 plans). Further, Mr. Cahill has substantial mega-case debtor experience (e.g., the Harnischfeger, Babcock & Wilcox, and Wickes Inc. cases) at national law firms and has also represented creditors committees, purchasers of assets, landlords, and other parties in interest in chapter 11 cases. He represented a creditors committee, a post-confirmation liquidation trustee, and many creditors in the recent automotive bankruptcy cases, including a management role in the prosecution of approximately 180 preference actions in the Plastech (a Tier 1 supplier) cases.

PROFESSIONAL ACTIVITIES

Mr. Cahill’s article, "Commodity Supply Agreements Are Swap Agreements: A Counter-Intuitive But Quite Real Safe Harbor From Preference Avoidance,” forthcoming in International Corporate Rescue, analyzes a legal strategy of potential value to companies that purchase commodities from or sell commodities to chapter 11 debtors.

EDUCATION

Mr. Cahill is a graduate of the University of Illinois at Urbana-Champaign, and received his J.D. from the University of Michigan Law School.

Pat Moran was a guest speaker at Lyons Township High School in La Grange, Illinois on April 13, 2011. His presentation to the "Business Principles" class gave students valuable insight on how the business world works from an attorney's perspective, as well as information on how to prepare for law school and a career as an attorney.

Lowis & Gellen LLP Attorney Charlotte Felber attended a recent Kellogg Executive Lecture Series on "Information Strategies for a Competitive Advantage" with Professor Michael Mazzeo. The lecture focused on: (1) information efficiencies for surpassing the herd; (2) differentiation by acquiring unique information from atypical searches and developing actionable knowledge; and (3) using internal information, which is often superior and unique, but being aware of potential bias and the consequences. Through educational opportunities such as the Kellogg Executive Lecture Series, Lowis & Gellen LLP attorneys stay apprised of current business and legal strategies in order to better serve their clients.

Step Change 2011

Gerald Haberkorn participated in Step Change 2011 where he joined hundreds of fellow runners to race to the top of London's most iconic building for the Child's Voice Appeal. He not only completed the challenge of climbing 1,037 steps 38 floors, his participation helped make a difference to the lives of children across the UK, by raising funds to improve the NSPCC and Childline phone line services.

Visit NSPCC @ nspcc.org.uk

The Illinois Appellate Court, First District, recently issued a decision in one of the “365/360 method” cases. (See attached). As you are aware, claims and defenses under the Illinois Interest Act based on lenders’ use of the 365/360 method for calculating interest are quite prevalent now, especially with the use of Laser Pro loan documents. In RBS Citizens v. RTG-Oak Lawn, LLC, RBS filed a complaint for mortgage foreclosure, which included claims seeking recovery of unpaid amounts under the loan, after the defendants defaulted on a loan. In response, the defendants asserted affirmative defenses and counterclaims based on RBS’s use of the 365/360 method, including alleged violations of the Interest Act (815 ILCS 205/1 et seq.), the duty of good faith and fair dealing, the Consumer Fraud Act (815 ILCS 505/1 et seq.), and common law fraud. Like many other circuit court judges presented with similar claims, Judge Delort of the Circuit Court of Cook County dismissed the defendant’s affirmative defenses and counterclaims with prejudice.

In a well-reasoned opinion, the Appellate Court affirmed the trial court’s dismissal as to all claims. With respect to the Interest Act, the court found that the language in the note explicitly provided that interest would be computed with the 365/360 method. The court rejected the defendant’s argument to the contrary -- that the note was ambiguous due to use of the term “per annum” in other provisions -- noting that the term “per annum” was not used in the paragraph discussing how interest would be charged or calculated. Because success of the remaining claims all required that the note’s interest provision be found improper, the court affirmed the circuit court’s dismissal of those claims as well.

The RBS court addressed one final issue. The defendants had signed forbearance agreements containing waiver of defense provisions. The court strongly suggested that by executing the forbearance agreements, the defendants waived any affirmative defense or counterclaim based upon the Interest Act and common law fraud. While the court did not actually rule on this issue, choosing instead to directly dispose of the Interest Act claim, the language in the opinion emphasizes the importance of including these types of waiver provisions in forbearance agreements.

This opinion, coupled with last year’s enactment of Senate Bill 1118, is obviously good news to lenders and should largely put to rest borrowers’ use of Interest Act claims as a defense to lenders’ actions on notes, although we expect to see some additional claims based on the particular language of different notes. SB 1118 amended the Interest Act to clarify that an annual interest rate for commercial loans may be lawfully computed on a 360-day year.

Lowis & Gellen LLP have been successfully chosen as the winner of the Corporate Intl Magazine 2010 Legal Award for:

“Mergers & Acquistions Law Firm of the Year in Illinois”
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“Banking & Finance Law Firm of the Year in Illinois”

December 2010 Lowis & Gellen partners Pam Gellen and Scott Wolfe successfully defended a University hospital and its doctors in an alleged wrongful death case. The suit was brought on behalf of a 29 year old mother of 4 who died from a pulmonary embolus just minutes after delivering twins. The plaintiff claimed the woman was at high risk for deep vein thrombosis (DVT) and pulmonary embolus (PE) in the latter part of her pregnancy and should have been provided with DVT prophylaxis. An expert for the plaintiff testified that DVT prophylaxis would have prevented a DVT and would have prevented the PE and death. The defense argued that the patient was not considered high risk and the options for DVT prophylaxis were either ineffective (TED hose or sequential compression boots) or carried an unacceptable risk of bleeding (prophylactic anticoagulation). The jury apparently believed the defense argument that the doctors didn't have a crystal ball and without knowing the outcome, the doctors could legitimately conclude that the risk of anticoagulation outweighed the risk of DVT and PE without anticoagulation.

The plaintiff asked the jury to award over $13million. The jury returned a verdict in favor of the defendants.