Early Investigations Lead to Favorable Outcomes

Lowis & Gellen, LLP partner Scott Wolfe secured dismissals of his clients from two claims illustrating the importance of early investigation and preserving evidence. In both cases the clients immediately contacted Mr. Wolfe and Lowis & Gellen was on the scene of the incidents preserving evidence and interviewing witnesses. In the first case, a heating pad used in an out-patient therapy session malfunctioned causing severe burns on a young woman. The pad was secured and the manufacturer contacted that day. Joint testing was done within a week, which determined the fault was that of the manufacturer and the operator employed by the hospital committed no error. The hospital arranged for the injured patient to meet with multiple honest and capable attorneys to represent her interests. A settlement was achieved with the equipment manufacturer. The hospital was exonerated and did not have to contribute to the settlement. In the second case, a paramedic claimed he was injured when an emergency department’s automatic doors snapped shut on him allegedly causing a back injury. Within a week of the claimed incident he made a claim to the medical center’s legal affairs office. Lowis & Gellen worked with in-house counsel to secure security videos and had diagnostic testing performed on the doors. Tests showed the doors were working properly and videos showed the plaintiff did not appear to have suffered any injury at the medical center. Over the next two years the allegedly injured paramedic engaged nearly a dozen attorneys who threatened lawsuits against the medical center. Each time, Mr. Wolfe met with the attorneys, showed them the evidence amassed and the attorney dropped the claims. The paramedic then filed a pro se lawsuit representing himself. A judge threw out the case within weeks of its filing. For more information on the cases or for general information regarding Lowis & Gellen’s litigation and risk management practice please contact Scott R. Wolfe at (312) 456-2709 or swolfe@lowis-gellen.com.

Messrs. Robert H. Smith and Vito M. Masciopinto, with the assistance of Mark Baginskis and Deborah O’Brien, successfully defended an university hospital-based neurosurgeon, in a case involving a 62 year old woman who had undergone a femoral popliteal bypass, but suffered spinal anesthesia complications, including a loss of sensation and movement in her legs. The patient subsequently was paralyzed from the waist down, underwent a tracheostomy, and subsequent amputations of both legs. Medical expenses amounted to over 4 million dollars. The plaintiff alleged the neurosurgeon, who was not on staff at the hospital where the bypass procedure took place, provided a neurosurgical consultation, by accepting a call from a first year resident, without coming in to see, evaluate the patient or review her chart and MRI images. Defendant neurosurgeon denied a consultation took place; and the defense argued the phone call was only advice, not intended to be relied upon by the hospital. The plaintiff asked the jury for $21 million. After deliberating for 2 days, the jury returned a verdict in favor of the defendant.

Christopher Cahill’s article, “Some Cautions On Selling Your Claim Against a US Bankruptcy Debtor” has been published in the Canada-US Business Council Bulletin, Fall 2012 issue. The article discusses negotiating strategy and potential pitfalls for the claims seller, and relates these to differing judicial interpretations of the implications of claims sales as distinct from claims assignments. View Article

L&G featured in Leading Lawyers Magazine

Click here to view article featuring Pam Gellen and the firm in Leading Lawyers Magazine.

August Law Advisory

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ILLINOIS APPELLATE COURT AFFIRMS JURY VERDICT IN FAVOR OF INTERNIST

In an Order issued today, the Illinois Appellate Court for the First Judicial District affirmed a jury verdict in favor of an internist represented by Lowis & Gellen. At trial, the jury rejected the plaintiffs’ claim that their decedent succumbed to bladder cancer as a result of the physician’s failure to timely refer the patient to a urologist for more specialized care. Plaintiffs appealed from the jury verdict obtained by trial attorneys Michael Code and Jamie Leavitt. The appeal was successfully defended by Deborah O’Brien. The appellate court rejected plaintiffs’ arguments that co-defendant’s counsel discriminated in jury selection, and that the trial court allowed evidence in violation of the Dead Man’s Act and the hearsay rule.

Jim Bream presented Practice Today: Perils, Pearls and Takeaways of Nursing Practice in the E-Era to the staff at Elmhurst Memorial Hospital on June 13, 2012. Jim Bream has been invited to be a presenter for Willis at its annual Managed Care Roundtable in September of 2012

Gerald Haberkorn has been invited to be featured by Corporate International and can now be found within the Corporate International Online Expert Guide. View Gerald’s profile here

Pam Gellen and Scott Wolfe successfully defended a birth injury brachial plexus case. Jonathan Loiterman and Bryan Larsen assisted. The plaintiff asked the jury for $16.3 million.

Jim Bream to present to CBA’s Health Law Committee

Jim Bream will be presenting to the CBA’s Health Law Committee on Medical Tourism, discussing the background and concept of medical tourism and the liability exposure generated by this emerging trend in seeking medical care off shore. He will be presenting at noon on May 4, 2012.

Jim Bream and Jamie Waynee present at CHRMS Annual Meeting

Jim Bream and Jamie Waynee recently presented “Multi-Faceted Relationships of the Guardian” at the Annual Meeting of the Chicagoland Healthcare Risk Management Society on April 27, 2012. Jim began the day-long meeting with his report as President of CHRMS, completing his term as President at the meeting. He was able to report on the continued success of this organization which now has over 300 members from the risk management, claims, and legal counsel communities. Jim and Jamie later presented to a captivated audience on the subject of when and how to proceed to with guardianship of hospitalized patients. Jim discussed the options available to health care providers prior to moving for the appointment of a guardian. Jamie provided a very informative and thorough discussion of the propriety and mechanisms of guardianship, drawing on her expertise in this area. The presentation was very well-received and highlighted the expanded services Lowis & Gellen is able to provide to its health care facility clients.

Congratulations to the following Lowis & Gellen partners, recognized as 2011 Leading Lawyers "Chicago Area Top Lawyers" by Chicago Lawyer Magazine.
Robert Smith, Jennifer Lowis, Pam Gellen, Mark Smith, Gerald Haberkorn, and Andrea Kott.

Christopher Cahill will be the sole speaker at a Lorman Education CLE presentation on August 7, 2012 entitled, "Adding New Avoidance Defendants After the Expiration of the Limitations Period." Mr. Cahill will discuss the proof required under Federal Rule of Civil Procedure 15 -- which governs the amendment and relation back of complaints to add new defendants -- in light of clarifications made by the Supreme Court in Krupski v. Costa Crociere S.p.A., 130 S.Ct. 2485 (2010). While he will focus on adding defendants to adversary complaints in bankruptcy litigation, Mr. Cahill's presentation will apply also to other federal civil litigation and to state litiigation under analogous rules.

Dismissal of Emergency Department in Arm Amputation

Lowis & Gellen, LLP has obtained a directed verdict for a Chicago community hospital and its emergency medicine department. A 52-year old woman got her hand and wrist caught in her overhead garage door, causing what was diagnosed as a minor fracture and cuts. The emergency department represented by Lowis & Gellen bandaged the cuts and referred her to an orthopedic surgeon for further care. No antibiotics or other medications were administered. Over the next several days the wound became infected, spreading to the bones of the wrist. After weeks of treatment, an amputation of the arm slightly below the elbow was necessary to save her life. Attorney Scott R. Wolfe aggressively filed counterclaims alleging the patient’s own delay in seeking follow up treatment recommended was the cause of her amputation. After allowing years of litigation and giving the plaintiff every opportunity to counter the defense, the presiding Judge was so overwhelmingly convinced by the defense, she refused to allow the case against Mr. Wolfe’s client go before a jury. She dismissed the case. The case will proceed to trial against an orthopedic surgeon, not represented by Lowis & Gellen, who saw the plaintiff after her brief hospital contact. For more information on the case or for general information regarding Lowis & Gellen’s professional malpractice group or general liability practice please contact Scott R. Wolfe at (312) 456-2709 or swolfe@lowis-gellen.com.

Christopher 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.

This article first appeared in International Corporate Rescue (Volume 8, issue 4) and is reproduced with the kind permission of Chase Cambria Company (Publishing) Limited.

Click here to view article

Rob Smeltzer been asked by the Northeast Circuit Clerks Association to give a speech at their 2012 Educational Conference, "Social Media Use from the Employer's Perspective - What are your legal rights?"

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Lowis & Gellen LLP was selected as a winner in the DealMakers Global Awards 2012 campaign.

The DealMakers Global Awards 2012 recognize a select number of leading professional firms, across the globe, for their individual areas of specialization, within their geographical location.

For more information please visit

www.dealmakers-monthly.com

Chicago Lawyer: The premier publication has selected Lowis & Gellen partner Gerald Haberkorn as one of 2011’s

“Leading Civil Defense Lawyers” & “Leading Commercial Litigation Lawyers”

LOWIS & GELLEN LLP OFFERS CONTINUING EDUCATION SEMINARS TO HOSPITAL CLIENTS

Lowis & Gellen has a tradition of providing continuing education seminars to hospital clients. Recently, Ms. Megan DeZutti has continued this tradition by presenting continuing education seminars for nurses at Loyola Gottlieb Memorial Hospital and Ingalls Memorial Hospital. In the Spring of 2011, Ms. DeZutti presented three seminars for nurses from all hospital departments at Gottlieb Loyola Medical Center and was asked to return in November to speak to surgical staff on the JHCOA “time out” requirements to prevent medical mistakes during surgery. In the Fall of 2011, Ms. DeZutti presented a seminar for Ingalls Memorial Hospital which was video-taped in order to provide education for new nurses during their orientation. These seminars have included topics ranging from general medical liability, electronic and paper charting, chain-of-command, communication, and medication errors. Ms. DeZutti has also lectured residents from UIC Hospital during monthly grand rounds.