Defense Argument Defeats Motion for New Trial in Medical Negligence Case

Lowis & Gellen partner Mark Smith represented the defendant physician in a case tried to verdict involving the death of a two year old girl. A pharmacy, named as co-defendant, settled prior to trial, paying $90,000. At trial, the girl's mother testified that she had administered viscous lidocaine to her daughter by mouth. The issue in the case was whether the defendant doctor had properly instructed the mother on how the medication was to be administered. The doctor testified that he had told the mother to administer the medication by applying to it to the sores in the girl’s mouth with a Q-Tip. The mother testified that she received no such instruction, even though the first time she administered the medication, she administered it using a Q-Tip. A verdict was returned in favor of the plaintiff with the jury finding that the defendant doctor and mother were both 50% negligent. A judgment was entered in favor of the plaintiff in the amount of $75,000, but this amount was subject to a set off in the amount of the co-defendant's prior settlement, resulting in a net obligation of $0 for Mark's client. This award was not based on any evidence as to economic damages but was solely for the loss of society suffered by the parents and three siblings.

The plaintiff was dissatisfied with the jury's award of damages and moved for a new trial. Joan M. Kubalanza, also a partner at Lowis & Gellen, wrote the Defendant's Response to the Plaintiff's Motion for a New Trial. Joan argued that in a case involving the award of non-economic damages, such as involved in this case, the award of damages is peculiarly a question of fact for the jury and that the jury's decision in such cases should not be disturbed, especially when there are no allegations of improper jury instructions or other trial errors. The trial court agreed with the arguments made in the defendant's response brief and denied the plaintiff's motion for a new trial.

Kevin Clancy recently obtained a preliminary injunction in the Federal District Court for the Northern District of Illinois for one of Lowis & Gellen, LLP's financial institution clients. The Court enjoined two defendants from filing a fraudulent U.C.C. Financing Statement in any U.S. jurisdiction , which the defendants threatened to file and which would have reflected falsely that defendants had a $128 million security interest and judgment against our client. The complaint that was filed in the case contains allegations of fraud and violations of the RICO statute. Kevin was assisted in this matter by Dan Marko, an associate at Lowis & Gellen, LLP and Joan Kubalanza, a partner with the firm.

24th Annual Nurse Attorneys Association Conference

Lowis & Gellen health law attorney Shellie Karno led two sessions of the 24th Annual Nurse Attorneys Association Conference held recently in Chicago. Shellie organized, coordinated, and moderated a panel of health care professionals presenting their perspectives on the volatile issue of tort reform. The program was titled "A View From All Sides" and the commentators included Max Brown, General Counsel of Rush-Presbyterian-St. Lukes Medical Center, for the hospital side of the issue, Theresa Hoban, General Counsel of Northwest Community Hospital, on policy perspective, and Robert Stalker of Hub International presenting the insurance industry perspective. Mark Smith, a Lowis & Gellen partner, presented the defensive perspective, and Allen Schwartz presented the plaintiff's perspective.

In an additionional presentation, Shellie addressed the Advanced Practice Nurse Section of the Association on the hearing and appeals provisions of the Illinois Nursing and Advanced Practice Nursing Act entitled "Defending Your License." Advanced Practice nurses are RNs with additional certification who work under the aegis of corroborating agreements and physicians. Shellie's programs were both CLE and NEC certified for attendees.

New Attorneys: Daniel Marko, Jamie Field, and Elizabeth Smith

Lowis & Gellen is growing again with the hire of three attorneys. Dan Marko, a commercial litigation lawyer with five years of practice experience and one year as a Judicial Extern to the US. District Court for the Northern District of Illinois, joins the Corporate Transactions and Litigation Practice. Jamie Field worked with L&G as a law clerk and is now an associate attorney in the Medical Malpractice Litigation Group, following her graduation from The John Marshall Law School (J.D., June 2005); and, Elizabeth Smith, a 2005 graduate of the DePaul University College of Law, who also joins the MedMal Litigation Group.

Please see their bios in the "Our Attorneys" section of the website.

The Decalogue Society of Lawyers' "Award of Merit"

Lowis & Gellen attorney Shellie Karno presided over the Decalogue Society of Lawyers "Award of Merit" Dinner on November 29. As President of the bar association, it was her honor to have Judge William D. Maddux, Presiding Judge Law Division, Circuit Court of Cook County, present the Merit Award to Illinois Supreme Court Chief Justice Robert R.Thomas. Approximately 200 guests were in attendance, and at least half of that number were judges and other dignitaries or special guests, including retired Illinois Supreme Court Justice Seymour Simon.

In his response, Chief Justice Thomas spoke about the recent Supreme Court rule requiring mandatory Continuing Legal Education for Illinois attorneys, and recognized the Decalogue Society of Lawyers for the Legal Education Series that the Society has been providing for over 50 years. He also addressed the Court's recent establishment of a permanently appointed Commission on Professionalism, and added a few comments about his years with the Chicago Bears.

Chief Justice Thomas joins a prestigious group of national and international luminaries to whom this award has been given in the past. Previous recipients include U.S. Supreme Court Justice Ruth Bader Ginsberg, former President Harry S. Truman, Dr. Jonas Salk, Sir Georg Solti, Saul Bellow, and Albert Einstein.

Scott Wolfe and the DuPage County Medical Society

Scott Wolfe recently spoke at a seminar sponsored by the DuPage County Medical Society on liability theories plaintiff attorneys may use to circumvent the new Illinois tort reform statute. The seminar, held at Central DuPage Healthcare in Winfield, Illinois, was attended by physicians and practice managers from throughout the west suburbs of Chicago.

For more information regarding the presentation, please contact Scott Wolfe at: 312-456-2709.