The SJD Update

In October of 2013, SJD Partners James Portelli and James Hough obtained a defense verdict in a medical malpractice case involving the death of an infant. Their client was a local hospital. In May of 2003, the baby was born prematurely. He was admitted to the Neonatal Intensive Care Unit and progressed as expected for approximately four weeks, but then he experienced episodes of apneas, oxygen desaturations, bradycardia and color change. The nursing staff called the neonatologist to report the baby's condition. Blood tests, ordered to be performed the next morning, revealed indicators for possible sepsis. Antibiotic therapy was started and a blood culture was ordered. The baby's condition continued to decline. The blood culture revealed the bacteria to be serratia marcescens. When that result was received, another antibiotic was added. Without the knowledge of the hospital or physician, the baby's father, a general surgeon, arranged for a transfer to an outside hospital. A lumbar puncture after the transfer revealed meningitis. The baby succumbed to his illness. The plaintiffs' claims against the hospital were that the nurses failed to report changes in the infant's condition in a timely fashion and failed to properly record and convey his true medical condition to the physician. Prior to trial, the plaintiff tried to add additional allegations that the nurses should have pushed the doctor to act sooner and the hospital should have had protocols that allowed the nurses to obtain certain testing with an order from the physician. These claims were barred by the Court. The case was tried for eight (8) days in the Jasper Superior Court and a defense verdict was received after approximately thirty (30) minutes of deliberation.

Greg Purvis will be lecturing on the subject of "Judicial Foreclosure Procedures" at a seminar in Indianapolis on December 16, 2013, sponsored by the National Business Institute entitled "Legal Issues in Real Estate Foreclosure".

In September of 2013, SJD Partners James Mc Quillan and James Hough were notified that they have been named "Top Rated Lawyers in Healthcare Law for 2013" by American Lawyer Media and Martindale Hubbell.

We are proud to welcome as the newest members of SJD family, Kyle Fogwell and Jheremy Perkins. Kyle is a Valparaiso resident and recent graduate from Valparaiso University Law School. Jheremy Perkins is a Gary resident and recent graduate from Indiana University Mauer School of Law - Bloomington. Both Kyle and Jheremy passed the Indiana Bar examination and are scheduled to be sworn into practice as SJD associate attorneys on October 15, 2012.

In July of 2012, SJD Partner, James M. Portelli, with the assistance of SJD Partner, Caleb S. Johnson, obtained a defense verdict on behalf of their client. Jim represented the owner of an auto repair shop. The Plaintiff, in an effort to get a discount on his car's repairs, offered to fix an industrial fan that was in the shop. While attempting to fix the fan's motor, the Plaintiff's right hand was severely injured, and a portion of one of his fingers was severed. The Plaintiff claimed that the defendant turned the fan on while he was trying to fix it. Expert medical testimony established that the Plaintiff had substantial permanent injuries to his hand. The Defendant denied that he turned-on the power to the motor, while the plaintiff was working on it. Jim argued that when the Plaintiff chose to try to fix the fan, he took responsibility for his own safety, and that the accident occurred as a result of the Plaintiff's own actions. The jury rejected Plaintiff's request for a verdict in a range of $116,000.00 to $563,000.00. Instead, the jury found in favor of the Defendant and awarded no damages.

In January of 2012, SJD partner, James L. Hough obtained two (2) very favorable verdicts in favor of his client in two (2) separate medical malpractice trials held in Lake Superior Court. In the first trial, the plaintffs asked the jury to award over $900,000 in damages. The jury awarded only $40,000, which was very close to the actual medical bills claimed as loss in the case. In the second case, damages exceeding $940,000 were claimed, but the jury awarded $46,210, again, very close to the amount of the medical bills and lost wages claimed.

Spangler, Jennings and Dougherty, PC, would like to congratulate Caleb S. Johnson and Adam J. Moore, on being named equity partners in the firm as of January 1, 2012.

In 2011, SJD partners James D. McQuillan, Gregory J. Tonner, James M. Portelli and James L. Hough, were all rated AV ® Preeminent ™ by Martindale-Hubbell. The AV Preeminent rating is the highest possible rating in both legal ability and ethical standards.

In May of 2011, SJD Partner James Hough won an appellate victory in favor of his client, a cardiothoracic surgeon, in a medical malpractice/wrongful death case which had been tried in the Lake Superior Court in Crown Point, Indiana, in August of 2010. The Indiana Court of Appeals affirmed the jury's verdict in favor of Mr. Hough's client. The plaintiff argued that the trial court had admitted the testimony of a defense expert witness in error and that the trial court should have entered judgment on the Evidence as to proximate cause as the defendant admitted that a procedure that he had performed led to the death of the patient. The Indiana Court of Appeals held that the expert testimony was properly admitted because the expert was qualified and his testmiony was reliable. Further, the Indiana Court of Appeals held that proximate cause could not be determined by way of a Motion for Judgment on the Evidence when whether or not there had been negligence was a matter the jury had to decide.

In October of 2010, SJD Partner Greg Tonner obtained a very favorable verdict on behalf of his client, a franchisee of a global fast food restaurant. In this case, the plaintiff claimed that he was injured when he slipped and fell on a recently-mopped floor, fracturing his tail bone. It was disputed whether a Caution - Wet Floor cone had been posted. The jury found the plaintiff 50% at fault. It also found damages of $42,816, which resulted in a reduction of damages to 50% of that amount, $21,408.

In August of 2010, SJD Partner Greg Tonner obtained a defense verdict on behalf of his client, a Northwest Indiana dialysis center. The plaintiff claimed that the defendants caused an injury to his hand when an EMT, responding to a medical emergency, pushed open the door to the dialysis center suddenly, striking his hand. The plaintiff claimed past medical expenses of over $125,000 and an equal amount of future medical expenses. The plaintiff had demanded $6,500,000 from the dialysis center to settle the case against it. After an 8 day trial, the jury deliberated for 2 hours and then returned a verdict in favor of the dialysis center, awarding no damages.

In August of 2010, SJD Senior Associate Adam Moore obtained a favorable verdict on behalf of his client. The case involved alleged personal injuries from an automobile collision that occurred on US 20 in Burns Harber, Indiana. The plaintiff sustained a fractured wrist and claimed shoulder injury and was trapped in his vehicle after the collision, but Adam was able to successfully argue that his client was only partially at fault for causing the accident and that plaintiff's claimed damages were caused in part due to a pre-existing injury. The plaintiff claimed a permanent injury with medical bills at over $13,000.00, anticipated future surgery and a 3 month wage loss claim. Plaintiff demanded a jury award of over $143,000.00 at trial; the jury awarded only $20,090.40. That award was later reduced under Indiana's Qualified Settlement Offer statue as the defense offer before trial was more than the ultimate verdict returned.

In July of 2010, SJD Partner Greg Tonner was appointed to serve an additional term on the Seventh Circuit Advisory Committee on Circuit Rules. This committee is composed of judges, law professors and attorneys experienced in practicing in the Seventh Circuit Court of Appeals.

In July of 2010, SJD Partner James Hough obtained a jury verdict on behalf of his client, a cardiothoracic surgeon, in a medical malpractice/wrongful death case which was tried in the Lake Superior Court in Crown Point, Indiana. The surgeon performed a coronary artery bypass graft (bypass) on the patient/plaintiff's decedent and as a stardard part of the procedure, temporary pacing wires were placed. One end of the temporary pacing wires are inserted into the heart, then the other end is brought through the chest wall or abdominal wall with a needle. The wires are only used if there is a need for external pacing. In this case, the patient did not improve as expected after surgery and many physician consultants were brought in to determine why. An exploratory surgery found that the temporary pacing wires had punctured the patient's large intestine, causing bowel contents to leak into the abdominal cavity. The ensuing infection led to the patient's death. It was undisputed that the puncture occurred when the surgeon apparently passed the needles and wire through the large bowel during the placement procedure. Prior to the case being filed in court, a Medical Review Panel found that the defendant surgeon had violated the standard of care. At trial, the defense explained that the procedure to place the wires required that the needles pass through several layers of fat, muscle and flesh, during which time the surgeon cannot visualze the needle. The defendant surgeon explaned that he used the same procedure to place the wires that he had always used and which had always been successful. It was further shown that it was possible that the patient's large bowel was in a position that would have been unexpected, much closer to the area where the wires are placed than is normal. The plaintiff presented the opinion of the Medical Review Panel as well as testimony from a surgeon who served on the Panel. The defendant surgeon testified and the defense also presented testimony from two cardiothoracic surgeons who stated that a bowel puncture, though rare, can happen even when all due care is taken. The jury deliberated and returned a verdict in favor of the defendant surgeon finding that he was not liable for the death.

In April of 2010, SJD Partner Greg Tonner obtained a jury verdict on behalf of his clients, a trucking company and truck driver, in Porter Superior Court in Valparaiso, Indiana. The plaintiff loading dock supervisor accused the defendant truck driver of hitting him in his face and breaking his jaw during a dispute over paperwork. The truck driver, who could not be located for trial, had claimed that the loading dock supervisor was following him and screaming at him. When the truck driver turned around to say something, he bumped into the loading dock supervisor who fell, but immediately stood up, apparently unhurt. The testimony of several witnesses supported this account. The defense argued that the plaintiff had a history of anger issues and likely got into a fight with someone else later that day wherein the jaw injury was incurred. The jury deliberated and returned a verdict finding the plaintiff 80% at fault. Under Indiana law, the Court entered judgment in favor of the defendants.

In August of 2009, SJD Partner James D. McQuillan obtained a verdict and judgment in favor of his client, a critical care physician, in the St. Joseph Superior Court. Persuaded by the weight of the evidence, the jury’s defense verdict denied Plaintiff’s request for more than $1 million in damages. The malpractice case hinged on evidence from medical specialties ranging from neurosurgery, neurology, neuro-pathology, neuro-radiology, hepatology, gastroenterology, nephrology, obstetrics, and critical care medicine; the issues of law and medicine centered on the distinctions between toxic metabolic encephalopathy and structural brain lesions. Utilizing cutting edge technology to illustrate facts in evidence, examine witnesses, and present argument, Mr. McQuillan was able to forcefully prove that the event in question had been unpredictable, thus returning the defense verdict. The facts of the case involved a patient who exhibited mental status changes in the ICU after a caesarian delivery. Multiple syndromes resulted in liver and kidney failure which caused symptoms of encephalopathy. Although the patient began to stabilize generally, the possibility of a liver transplant required the patient be transported to a university hospital. While in transit, the patient suddenly became unresponsive and subsequent medical imagining showed a fatal subdural hematoma had occurred. The team of plaintiff’s attorneys from Indianapolis contended that the patient’s mental status symptoms throughout her medical course had been caused by an undiagnosed intra-cerebral hemorrhage. Attorney McQuillan countered that the physicians had appropriately evaluated and diagnosed the medical problems present at the time in question. Defense evidence was also marshaled which reflected that the subdural hematoma had arisen outside any reasonable expectation, resulting in a verdict and judgment for the physician client.

In July 2009, SJD Partners Kathleen Maicher and James Hough obtained a verdict on behalf of their client, a general surgeon who performed bariatric surgery, in a malpractice case brought against him in LaPorte County, Indiana. The plaintiff sought treatment for morbid obesity in the form of a gastric bypass surgery. The defendant agreed to perform this surgery and apprised his plaintiff of the pertinent risks. During the gastric bypass surgery, a large artery was transected which led to significant bleeding and hemorrhagic shock. This necessitated the removal of the plaintiff's spleen. Unfortunately, the blood loss also contributed to numerous post surgical complications including a leak at the bowel connections from the bypass, infection and respiratory failure. The plaintiff was transferred from a local Northwest Indiana hospital to a tertiary care center in Chicago, and ultimately to a rehabilitation hospital back in Indiana. The plaintiff was hospitalized for over three months and had a long recovery thereafter. The plaintiff claimed that the surgeon was negligent in transecting the artery and continuing the surgery after bleeding was controlled rather than stopping the surgery and continuing it at a later date. The defendant argued that severing a blood vessel was a known and anticipated complication. The surgeon had placed staples to control bleeding before cutting but, apparently, the blood vessel had retracted from the staples. Finally, it was argued that the surgeon appropriately consulted with a specialist before continuing the surgery and completed the surgery properly. The plaintiffs asked that the jury award several million dollars in damages. The jury returned a verdict in favor of the surgeon finding that he had not committed malpractice.

In May 2009, SJD Partner James M. Portelli and Senior Associate Adam J. Moore obtained a jury verdict on behalf of their client, a podiatric surgeon, in a medical malpractice action. The plaintiff claimed that the physician had committed malpractice which resulted in an overcorrection deformity of her foot. The plaintiff underwent four additional surgeries in an attempt to correct the deformity. Ultimately, even with several surgeries, the Plaintiff claimed ongoing pain and difficulties. The plaintiff claimed over $50,000.00 in damages from medical expenses and lost wages. Jim and Adam defended the case arguing that their client complied with the appropriate standard of care and that the plaintiff was contributorily negligent by her failure to follow postoperative orders. The Lake County, Indiana jury returned a verdict in favor of Jim and Adam's client and against the plaintiff.

In April 2009, SJD Partner Kathleen Maicher won an appellate victory for her client, a Northwest Indiana surgeon, in the Indiana Court of Appeals. In 1995, the surgeon treated a patient who became a plaintiff in a lawsuit in 2003. In 2005, counsel for the defendants contacted the surgeon to review the plaintiff's medical records. The surgeon did not realize that a former patient was involved until he actually reviewed the records. Nonetheless, the surgeon produced a report for the defendant. When the plaintiff discovered this, he brought suit against the surgeon claiming violation of the physician-patient privilege, invasion of privacy, and breach of fiduciary duty. The trial court granted summary judgment to the surgeon and the Court of Appeals upheld that decision finding that the plaintiff had waived the privilege by filing suit on his injury and that the surgeon did not provide any information about the plaintiff's treatment that was not disclosed during discovery, therefore, no invasion of privacy, nor breach of fiduciary duty occurred.

In April 2009, SJD Partner James Portelli and Associate Ami Noren obtained a defense verdict on behalf of their client, a family practice physician, in a wrongful death medical malpractice case. The plaintiff claimed that the physician was negligent in failing to diagnose a developing heart condition that eventually led to a heart attack and death. They argued that the physician should have ordered testing to confirm whether or not the decedent's complaint of heartburn was a more serious problem. The plaintiff claimed that given the patient's family history of heart disease, as well as her smoking and alleged hypertension, the physician should have been on notice of the risk for heart disease and ordered testing to rule it out. The defense argued that the physician's care was quite reasonable given that her symptoms were more consistent with acid reflux as she did not display the typical classic signs of angina, and there was a very clear explanation for the patient's symptoms due to her excessive consumption of caffeinated beverages. The defense further argued that the patient herself was contributorily negligent by failing to timely report her ongoing symptoms despite doctor's orders to do so and by not seeking medical treatment sooner on the day of her heart attack. In closing argument, the plaintiff requested a verdict of 1.2 to 1.6 million dollars. After deliberation, the jury returned a verdict in favor of the defendant and against the plaintiff.

In December of 2008, SJD Partner James Hough obtained a defense verdict on behalf of his client, a dentist. The dentist had been accused of dental malpractice by failing to provide a realistic treatment plan for the patient, delaying the treatment for over 11 months, and failing to address underlying pathology before embarking upon an aggressive treatment plan. The plaintiff ultimately lost all of her teeth. James argued that the treatment plan provided was appropriate and that any treatment delays were due to the dentist attempting to provide excellent care and by the actions of the plaintiff. The jury returned a verdict in favor of the defendant and awarded no damages.

In August of 2008, SJD Partners obtained a defense verdict in a wrongful death alleged medical malpractice jury trial for their client, a board certified internal medicine specialist. The plaintiff had a long-standing history of the immunological diseases known as lupus erythematosis, Raynaud's syndrome, scleroderma and gastro-esophageal reflux disorder. She was treated at the emergency department of a local hospital, and was subsequently seen by her family physician, who ordered an upper G.I. study and barium-swallow test, which was eventually read as normal. Plaintiff alleged that the two treating doctors were negligent in not diagnosing her coronary artery disease, which caused her acute myocardial infarction as shown at autopsy. However, the defendants proved that the patient died from "a sudden cardiac death" which was not predictable, diagnosable or preventable. Defendant provided testimony from his expert witness, who was a board certified cardiologist, and pathologist, that the small fibrin clot which was seen only in the microscopic description of the autopsy slides, could not have been more than four to six hours "old" at the time it caused the death of this patient.

In July of 2008, SJD Partner, Jon Diston, obtained a very favorable verdict on behalf of his client. This case involved a rear-end automobile accident and the defendant admitted fault in causing the accident. The plaintiff had a cervical disc fusion surgery and left shoulder surgery that occurred after the accident, but Jon was able to successfully argue that these procedures were due to a preexisting injury, and not from the accident. The plaintiff claimed medical bills of over $67,000.00, but the jury awarded only $18,500.00.

Congratulations are in order for SJD's newest Associates, Lia Gucciardi and Ami Noren. Both took the February 2008 Indiana Bar Examination and successfully passed it. They were sworn in as Indiana attorneys on May 23, 2008.

In this case, SJD Partners obtained very favorable results both in the trial court and before the Indiana Court of Appeals. On May 15, 2008, in the case of Frame v. Tharp, et al, the Indiana Court of appeals affirmed a jury verdict obtained by an SJD partner which awarded only $9,000 in total damages against a finding of $300,000 in damages, due to the successful application of both the comparative fault of the plaintiff and the nonparty defense. At issue in the appeal was whether the nonparty defense could be used in this home construction accident case. The Court of Appeals found that the nonparty defense was properly asserted and was properly used to reduce the fault of the defendants.

An SJD partner obtained a victory on behalf of his client in the Indiana Supreme Court. On May 13, 2008, in the case of Querrey & Harrow, Ltd., v. Transcontinental Insurance Company, the Indiana Supreme Court reversed the decision of the trial court and ordered that summary judgment be entered on behalf of a SJD client on the basis that an excess insurer may not bring an action for legal malpractice against attorneys which represented one of its insureds.

Another Indiana Court of Appeals victory was obtained by an SJD Partner on May 8, 2008, in the case of Amsted Industries, Inc. v. Kaufman. The Court of Appeals reversed the decision of the trial court granting a motion for summary judgment against, and denying partial summary judgment. In this construction accident case, the Court held that an indemnification clause was valid and applied to afford indemnification to SJD's client.

In May of 2008, seven members of the SJD family teamed up to participate in the Indy 500 Festival Mini-Marathon in Indianapolis. This race is the largest half marathon (13.1 miles) in the nation with almost 35,000 participants. The SJD group ranged from serious runners to serious walkers and every single one completed the entire course. The participants were Partners Robert Hawk, Jr., and James Hough; Associates Caleb Johnson, Janis Sims, and Lia Gucciardi; and staffers Gail Stuhlmacher and Donna Martin.

In January of 2008, SJD Partner James Hough obtained a defense verdict on behalf of his client, a family physician, following a jury trial in the St. Joseph Superior Court. The physician was accused of failing to timely diagnose an infection outside the plaintiff's lung at a time it could have been treated with medication and drainage. It was alleged that due to the delay, an invasive surgery was necessary. The defense argued that the physician rendered proper treatment, found the problem and got the patient the treatment he needed. A Medical Review Panel unanimously found that the physician had violated the standard of care and caused injury, but the jury disagreed, unanimously finding for the physician.

In January of 2008, Partner James M. Portelli and Associate Caleb S. Johnson successfully defended a construction lawsuit brought by a general contractor against a framing subcontractor in a five day jury trial in Lake Circuit Court. It was alleged that the subcontractor's poor framing reduced the value of the newly constructed house and caused a delay in selling the Crown Point home. Prior to trial, the Plaintiff demanded $75,000. At trial, the plaintiff presented evidence of claimed damages in approximately that amount. Over $3,000 in repair costs were admitted by Defendant. The jury returned a verdict for Plaintiff in the amount of $3,500. Jim and Caleb were then successful in reducing their client's liability by another $1,000.00 for attorney fees and costs by utilizing the qualified settlement offer statute.

In July of 2007, SJD Partner Jon Diston defended a local church and church officials in a four day jury trial. The plaintiff had claimed defamation, intentional infliction of emotional distress, invasion of privacy, harassment, negligent infliction of emotional distress and negligent counseling. Prior to trial, the plaintiff’s demand exceeded $900,000. At trial, the plaintiff sought punitive and compensatory damages. On the motion of the defense, two of the individual officials were dismissed from the case prior to jury deliberations. The jury refused to award punitive damages and awarded only $ 35,000 in total damages.

In June of 2007, an SJD Partner obtained a very favorable verdict on behalf of his clients. The clients were homeowners who were having a modular home placed on a basement. One of the workers fell through the floor and received significant injuries. At trial, he argued the comparative fault of the plaintiff, as well as the nonparty fault of another entity involved in the work. The Jury found $300,000 in damages but found our clients only 1% and 2% at fault, respectively.

In April of 2007, SJD Partner James Portelli successfully defended his clients in a jury trial in the Lake Superior Court sitting in Hammond, IN. Jim represented a clinic and a radiologist in this medical malpractice case involving an alleged delay in the diagnosis of breast cancer. The clinic admitted that an employee breached the standard of care, but disputed that the breach caused the damages claimed by the plaintiff. On behalf of the radiologist, Jim argued that the radiologist did not breach the applicable standard of care, and also disputed causation and damages. The plaintiff's counsel asked the jury to award over $1.5 million. The jury returned a defense verdict in favor of the radiologist, and awarded only $90,000 against the clinic.

In February of 2007, an SJD Partner successfully defended a Northwest Indiana urologist in a medical malpractice jury trial. The plaintiff claimed that the physician improperly placed stitches in her bladder during a Burch ColpoSuspension procedure causing her severe pain, urinary incontinence and other significant injuries. The defense presented extensive expert testimony in support of the urologist’s treatment. The jury rendered a defense verdict, finding for the physician and against the plaintiff.

In February of 2007, SJD Partner James Hough obtained a defense verdict on behalf of his client, a Northwest Indiana hospital. The plaintiff claimed that the hospital premises was dangerous to a visitor who tripped and fell. Medical bills exceeded $90,000, and the plaintiff’s counsel requested that the jury award damages of over $1 million dollars due to the medical expenses, a permanent injury and pain and suffering. James argued that no hazardous condition was present at the hospital and that a hip replacement the plaintiff had was due to degenerative arthritis, not the fall. The jury found for the hospital and awarded no damages to the plaintiff.

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