L&G Trial Attorneys Compile Impressive Record in Healthcare Industry Cases

From January 2006 and continuing throughout 2007, Lowis & Gellen trial lawyers have defended healthcare providers in numerous healthcare and medical liability cases with particularly impressive results for our clients. 

Clients and lawyers agree that the best outcome frequently is a dismissal of allegations or achieving a settlement, and avoiding a trial.  However, some cases demand to be tried. When that occurs, Lowis & Gellen lawyers strive to obtain a summary judgment or directed verdict, a favorable settlement, or a favorable verdict that protects the client from additional monetary exposure. 

In these representative cases, our trial lawyers succeeded in presenting compelling evidence, persuading the judge or jury the client was not liable for the damages alleged and compiling a solid record of successful verdicts.  Here is a recap of some of the cases in which L&G attorneys protected health care providers in the last two years.

Vito Masciopinto and Kevin Clancy recently successfully represented the purchaser of a nurse staffing agency in a trade secret misappropriation case against a former officer and a former employee of that agency. The Plaintiff acquired the assets of an existing nurse staffing agency in July 2007. Shortly thereafter, they learned that the former president and a former employee of the agency had established a competing business and had taken confidential materials from the agency, including rosters of nurses, and used those materials in their new business. Although the former employees did not have restrictive covenants, Plaintiff filed suit alleging that the documents taken were trade secrets and were misappropriated. Discovery was expedited and the case went to trial in December 2007. Mr. Masciopinto and Mr. Clancy tried the case as a bench trial and obtained judgment in favor of the Plaintiff on the trade secret claim. As damages, the court ordered defendants to disgorge all gross revenues they had obtained through the use of the trade secret materials for a period of seven months.

Robert H. Smith, Vito Masciopinto and Scott R. Wolfe represented a hospital emergency department alleged to have been negligent in the care and treatment of a child, later diagnosed with leukemia and a spinal cord tumor which resulted in paralysis. Plaintiff asked the jury for $9 million to $15 million. After trial, the jury returned verdict of Not Guilty.  

Mr. Robert H. Smith and Megan DeZutti defended a physician in a Will County trial involving the death of an infant due to heart abnormalities, which the plaintiff claimed could have been corrected if diagnosed. The verdict returned was Not Guilty. 

Scott Wolfe represented a Chicago area hospital against allegations of inappropriate labor management by its nursing staff in connection with a still birth. Although the loss was tragic and the nursing care was difficult to defend, Mr. Wolfe aggressively pursued a causation defense based on a lack of amniotic fluid causing chronic asphyxia to the fetus, irreversibly damaging the baby prior to the mother arriving at the hospital. On the eve of trial, a settlement was achieved in an amount that was a small fraction of that originally sought and far less than is usually awarded in similar cases in Chicago. 

Brian Levin successfully defended a Chicago area hospital and its emergency department physicians who allegedly failed to diagnose medication-induced toxicity of a patient and failed to reverse the potentially fatal condition.  Plaintiff’s counsel asked the jury for $4.9 million.  The jury returned a verdict for the hospital in under three hours.

Pamela Gellen and Scott Wolfe represented a Chicago area hospital whose nursing staff was accused of mismanagement of a labor which resulted in a still birth. After the presentation of evidence and argument before trial, the Court granted summary judgment, dismissing the nursing allegations on the merits and dismissing apparent agency allegations.  The entire case against the hospital was therefore dismissed.  Subsequently, the attending physician, not represented by Lowis & Gellen, settled during trial for nearly $2 million.

Mark J. Smith defended a physician in a medical malpractice case alleging failure to diagnose and treat kidney failure resulting in the patient’s death.  A motion for summary judgment was granted during pre-trial motions based on the strength of Mark’s defense.

Mark Smith and Scott Wolfe defended a general practitioner in a case alleging failure to diagnose non-Hodgkins lymphoma leading to the death of a middle-aged woman. A motion for summary judgment for the defendant physician was granted at trial based on the strength of the defense.

Mark Smith defended an orthopedic surgeon in a multi-million dollar medical malpractice lawsuit alleging failure to properly diagnose a fracture of the plaintiff’s distal radius, resulting in improper healing, multiple correction surgeries, permanent disability, pain and lost income. The initial trial ended with a deadlocked jury and was declared a mistrial. On re-trial, the jury returned a verdict of Not Guilty.

Pam Gellen and Scott Wolfe represented a Chicago hospital and its nurses who were alleged to have mismanaged a labor and delivery, resulting in a shoulder dystocia.  Through thorough pre-trial preparation and strong expert witnesses, they were able to establish the hospital and staff were not responsible for the child’s injuries. The plaintiff and her counsel elected to dismiss the case just days before trial.

Jenny O. Blake represented two Chicago hospitals in two separate cases in January 2007.  In each, she successfully won summary judgment on actual and apparent agency allegations resulting in both hospitals being dismissed from the lawsuits, a result rarely seen in Chicago lawsuits.

Mark Smith and Jenny Blake represented a physician in a lawsuit seeking several million dollars in past damages and future medical expenses.  Plaintiff claimed her injuries were the result of a failure to timely diagnose perforation of a duodenal ulcer causing sepsis, hypoxia and stroke, which resulted in a significant disabling brain injury.  The Court found the physician Not Guilty. 

Ms. Blake represented two hospitals in the summer of 2007 in separate lawsuits alleging professional medical liability. In each, Jenny was successful in securing the hospitals’ dismissals from the suits on motions to dismiss.

Scott Wolfe obtained a dismissal of several surgeons in a lawsuit concerning burns sustained during a surgery.  Through careful preparation and deposition testimony, the plaintiff was convinced the doctors had no responsibility for the placement of the grounding pads that failed to prevent the burns. The doctors were dismissed shortly after their depositions, with no settlement or other payment.

Rob Smeltzer and Ethan Hayward of Lowis & Gellen’s Chicago office, and Deb O'Brien of the firm's Orlando office, obtained a not guilty verdict for a cosmetic surgeon in a highly publicized dispute in the U.S. District Court for the Middle District of Florida.   The hotly contested case involved multiple counts centered on two primary issues: the ownership of an internet domain name and the ownership of web site content that had been created by the surgeon during his employment with a medical facility.  Lowis & Gellen successfully petitioned the Court for dismissal of multiple counts before trial.  Although the jury found that the facility (and not the surgeon) owned the domain name, the jury found for the surgeon on copyright infringement.  Plaintiff sought more than $4 million dollars in damages for copyright infringement. The jury found in favor of the facility on other counts of the complaint, but Mr. Smeltzer and Ms. O'Brien attacked Plaintiff's damages claims. The jury awarded the facility only $85,000 of the more than $5 million dollars sought.  Due to the prevailing party attorneys' fees provisions of the Copyright Act and the L&G attorneys' pre-trial use of the federal offer of judgment statute (FRPC 68), pursuit of a net recovery in our client's favor is proceeding. The extremely favorable result was obtained at a cost less than one-third of Plaintiff's costs.

Sometimes a loss is a win.  Mark Smith defended a physician in a lawsuit where, in spite of his meticulous preparation and considerable trial skills, the bad facts of the case could not be overcome. Here is an excerpt from a letter written by the client, an in-house attorney who oversees national litigation: “Mark never wavered. He never gave up. I have seen other lawyers give up under easier circumstances. His efforts kept the verdict from getting out of hand. His closing argument protected his clients.  A loss is truly a win in this case. There is no greater pleasure for me than to work with this kind of talent.”  Although a $2 million verdict was rendered against our client, the Plaintiff’s final demand prior to trial was $4 million, representing the insurance exposure in the case.  The Plaintiff’s attorney asked for over $5 million from the jury. 

For general information regarding Lowis & Gellen’s professional malpractice defense group or general liability practice, please contact partner Robert H. Smith directly at rsmith@lowis-gellen.com or phone 312-456-7950.  For biographical information of all of our attorneys, more detail on these and other cases, current news and information on L&G’s other litigation and transactional practice groups, feel free to explore our website.