court fundamentally eared and holding that expert testimony concerning the clinic's compliance with the standard of care was a relevant to the claim against reson  appellate decision and the events in the trial court are framed by plaintiff's allegations plaintiff's expert testimony through dr newman as in the course instructions to the jury which plaintiff did not negligence in monitoring the patient scheduling a follow up visit community communicating the plaintiff and advising the plaintiff there was a section two hundred and sixty two to report with the medical negligence complaint against both d tracy and the clinic fast forward through discovery to trial plaintiff's expert witness dr heaven as an orthopedic surgeon voiced plaintiff's professional negligence theory against dr tracy and an institutional negligence theory against resin orthopedics as to resin dr him and as testified to a reasonable degree of medical and surgical certainty that's a quote that the standard of care required resin orthopedics to set an appointment in the two week time frame set by dr tracy the basis for dr hemant as opinion was dr so i think that's very very important and very telling on this record doctor him in his voice his standard of care opinions not based exclusively on what dr tracey ordered or based on an obligation of an employee to follow her employer's instructions playing his own expert against resin based his opinion on medical considerations those medical considerations according to dr him an  dictated residence conduct through its receptionists reson orthopedics countered with peril expert testimony also grounded in medicine not on considerations of office management or administration the defense expert dr pins or testified the staff scheduling of the appointments three weeks out complied with the standard of care like doctor  medical reason as the basis for his standard of care opinion seeing the patient it three weeks four weeks did not impact the medical care and cross examination waiving the position that the defense should not be permitted to permit testimony that varies from the idea that two weeks was written in stone planus council revisited resin standard of care with  in those exchanges dr pins or disagreed that the standard of care obligated the receptionists to clear a difference of a week or so with a physician so this is this is the case that plaintiff framed framed the issue as a medical testimony as relevant to the standard of care the plaintiff design a single case supporting the proposition that what counsel in the appellate court in the trial court called dr tracy's standard of care eliminated the relevance of all over to all other standard of care evidence plaintiff does not cite a single case holding that policies and practices dictate a j n o v in this or any remotely analogous situation the appellate court cited cases reversing summary judgment orders the appellate court cited cases standing for the proposition that we offer to the court today and that is this was a question of fact for the jury the trappy the internal practices do not conclusively dictate the standard of care the fact that in some instances physician testimony or other types of expert testimony may not be required does that mean it's excluded as a relevant or that it must be excluded as a relevant and that is  a different issue your honor and it wouldn't necessarily be the same standard of care as an institutional theory as opposed to refresh and all negligence theory has received as a doctor tracey reson and that instruction specifically said to the jury consider opinion testimony as well as testimony concerning policies and procedures so if i can if i if the court doesn't have questions for me on the standard of care i'll address proximate cause briefly i believe that the appellate court fundamentally erred on this issue as progress to a pulmonary embolism over a matter of hours so and the issue of proximate cause if there is any overwhelming conclusion to be drawn from the trial record it is that the promise of claims mr c should have been seen again so in addition to that go on from there dr hummel a pulmonary and critical care specialist told the jury that the st sign of a clinically significant d v d was da that cause ation raising questions concerning what dick tracy would have found what he would have thought was appropriate treatment for a young man of the extremely low risk compared to other people and with that type of injury having this sort of a problem or whether medication would have resolve and prevented a pulmonary embolism one thing for certain is that there was a question of fact for the jury plaintiff actually said so i court's judgment should be vacated and the jury's verdict reinstated and very briefly and the issue of new track we submit that there is no reason to sum the case back to the appellate court to consider the new trial issues that plaintiff raises all of the trial issues plaintiff raises impact the standard of care and plaintiff did not disagree with that characterization in the brief if this court agrees that the verdict should stand on the causation evidence there's simply be no basis to question whether the trial court or whether the trial should be repeated based on evidence or issues or trial conduct that only impacted whether causation evidence was quite ample to support the jury's verdict the issue about the plaintiff raised three issues very briefly one was whether the court abused its discretion allowing the defense to present hearsay to a stale wish her theory about negligence in connection with the feb th twenty five phone call play of claims was mishandled plaintiff doesn't disagree that she was trying to prove the content of that call i'm playing a siri that misty complained of a typecast in a call and that the person on the answering the phone said isolate him elevated and didn't advise a physician assistant a system of content the trial judge simply followed a st decision the agins decision that was directly on point two to bar that testimony and again this court may have taken this case out of its great respect for jury verdicts that's one of the organism in our petition and i in my estimation perhaps the most important one we believe that the judge correctly determined the trial judge that the clinic was entitled to present its side and that the jury resolved the factual issues as the judge instructed  may please the court good morning my name is marty lucas and along with laura levin buds it's my privilege of representing sue and olivia steed in this matter it's an honor to be here before you today before i start my remarks i do want to point out one thing because case because the appellate court saw all right through what the defendant tried to do a trial between the two different theories of liability as this court i'm sure knows it was a direct theory against d tracey within a standard of care as to whether or not he should provide chemo profile access to prevent a d v d the secondary was very simple which was against the group itself which is when  doctor give an order to his staff to set an appointment follow up they are obligated to follow all of that and follow his order and do what he says very simple those two issues have nothing to do with each other they are completely separate fears but they keep trying to suggest that their expert testimony in the standard of care somehow crossed over and intermingles in his applicable to both that's not the trial that we had if you look carefully at the testimony their experts don't talk about the stand of care of the staff they're talking about the chemo pro e access issue that wasn't required that was clearly a dispute among the experts that's why it's not before you was before you a simply whether or not there was any evidence  within the center of care and they didn't follow it that's their obligation there's a lot of argument here by the fence saying that we're somehow creating a higher standard of care for the staff and the group these non medical professionals that's the exact opposite of what's happening here we're saying they can't substitute their judgment they can't make medical decisions their job is to take that super bill which is where dr tracy gives his order and follow it 's very simple and documented says that's the standard of care in an office setting the staff has to follow what the doctor said because the trial judge rejected our ordinary negligence instruction but i'm not sure it really makes a difference for what the appellate court did here because even if we use this the one of five instruction burst of the ordinary care instruction there were still overwhelming testimony that said that the staff had to follow the order as given they didn't have any discretion so we put out professional standard of care testimony to assist the jury and then what did we do on top of that well we added admissions from dr tracy saying yes they have to follow my order t expectation we added admissions from the staff themselves saying vet yes we're supposed to follow his order and what's really ironic about the defendant's position is cases there's the as they keep saying a custom practice is not evidence of a standard of care that's not actually the law what this court has held many times is policies and procedures utilized by a hospital or an office or wherever maybe indic you know the standard of care there is not necessarily the standard of care so we offered that test when a jury in there was no dispute even dr pins are admitted that that was the order they're supposed to follow it but to suggest that somehow we're creating this new standard of care that's higher than what the doctor head doesn't make any sense and they want to have their cake and eat it too because they're saying we can't use custom practice but at the same time there are so telling you that we ignored customer practice testimony or some of the people say well we could go out a few days or even a week or whatever it was the problem with that of course is if they're saying a professional standard of care had to apply and was appropriate applied they never established that that personal practice that that individual's custom practice that she may have head country bird could stand on that issue and they recognize that all these other opinions were just conflating the different issue and were designed to really confuse the whole issue with the jury we expect dr dr tracy to act within the standard of care for the best interests of his client so when he said i want to back in two weeks he gave very explicit medical reasons why he wanted that done nobody comes into the courtroom and says that two weeks order was against the standard of care it was within the standard of care so once he says this is what i want for my patient they're obligated to follow it they can again substitute our objection because again on the institutional negligence of our point was once he says two weeks nobody says you can go past two weeks there's no testimony from anybody so that's ok and i get one more point which i really find to what was the case here which is you've got a super bill that's my order to follow it but think about how the amicus never touches upon that the defense of me just think about the chaos that could happen if every place can just willy nilly have their own standard of care when you have receptors trying to figure out well this injury should have a two week so i have a old weeks leeway for this one is four weeks off have a two week leeway that would be chaos and terrible for patient care nine he had no complaints consistent with b v t nevertheless dr tracey took a history to find out was there any evidence of d there was no indication by the patient he was having complaints that might be consistent with that in addition to that once he realizes there is no at that point sign of a d v d he has a lengthy discussion with mr steed about that issue saying here's here's the risk we can possibly give you medication i don't think it's necessary but we can do this and i will point out again that a lot of the detail about that  central wrist was brought out on the rehabilitation questioning of dr tracy by defense counsel so they were recognizing even before any symptoms that that if you take that in isolation i would say no but i i know that the public or clearly look at the entire record and the entire record was of the medical testimony was based on the complaints that were discussed trial starting the day after the cast was placed up until the time he died if those those complaints being present had he been seen in two weeks it would have been diagnosable and to your tracy himself and dr tracy when presented with the hypothetical saying dr i know you didn't see him but sue stevens says he had these complaints if you had seen him in those two weeks would you have been in a position to diagnose that which one as well as dr tracy all agreed that based on those complaints and based on what we know obviously died from a p e that that p v t likely occurred in the lower extremity where the injury was the other expert didn't touch on it now as far as dr pins are goes this is a good example of what lord looks large from a distance close up was never that big because when you look at his testimony he never gives a proximate cause opinion two weeks and he was seen it would of been diagnosed for untreatable if he didn't have it would've been diagnosable and treatable but he doesn't give an opinion that it wasn't there he doesn't give an opinion if he could have that it would been speculative to say that because the hearsay issue would have allowed the jury to get more information one about how glen was feeling but also more information about the phone call that was made  counsel made a comment about proving the content well the issue with hearsay is are you bringing it out to prove the matter asserted that's not really what proving content means because the content was to show that if those statements were made certain things would have been done so for example if he had told sue's deet i didn't call the doctor's office as i promised she would have done something if he had told if he had got if that message got to the doctor and the doctor likely would have done something in response to that so that that would have bolstered i think the proximate cause issue but again since we only have dr jimenez and dr tracy giving actual testimony opinion testimony on that issue isn't necessary for affirming  look at the whole context of the case clearly that there was no justification for ignoring the doctor's orders there's no explanation that would be within any standard of care to do that and under the testimony that was provided there was no contrary testimony that something other than a then a lower leg d v t caused this man's death and no country testimony that treatment would have prevented no i mean i think that then you well i mean if i haven't proved one element of my probation case i guess you're right i had to think about that for a nd but yeah i mean that's part of the private fisher case i mean we recognize that every every presumption should be or every bit of the evidence should be considered to determine whether the jury's verdict was supported by the testimony and the issue of proximate cause of course the counsel points out some testimony that he believes supported the plaintiff's theory but counsel is wrong when counsel says that only  just some of dr tracy's testimony but very significantly dr tracy testified he had no idea what he would have been confronted with had the patient returned on march rd or what that all of the experts or at least i know dr him is certainly conceded this point on cross examination and the other experts as well established want to rear situation this was and dr hum discussed the the medical literature and the jury what the jury heard was there was no reported case in the english language of a p e under these circumstances so this is a rare occurrence this is not a this is not a foreseeability issue and i think that one of the amicus for the for the defense made a very good point and challenging foreseeability it wasn't foreseeable  you know again the issue of whether there could have been a diagnosis absolutely a question of fact nothing about the here's a testimony that plaintiff wanted to present had anything to do with the issue of proximate cause and plaintiff has until today argue that it does and the standard of care issue there was never an argument presented by the defense of some unusual or higher standard there was never an argument by the defense that the plaintiff couldn't talk about custom and practice or policies it is the plaintiff who is saying that the defense could use expert testimony so that's the argument is a little bit backwards and and certainly and again these are the instructions that were given to the jury that the instructions a to the way to determine resins standard of care haven't been challenging the appellate court or in this court and the you know for the plaintiff to say is only about whether the  receptionist followed an order just to schedule the appointment within that time frame while the there was there was not testimony that if it's march rd it has to be march rd there was testimony that took issue with the certainly there was testimony of jodi decker who said that who explained what her process was and scheduling the a casting appointment and that there it was not required under the she had no reason to believe that she had deviated from her house from practice so it wasn't as though there was a one hundred percent unanimity and they had issue or that dr tracy said that there was a standard of care that was required of instructions that were given to the jury the jury considered dr panzers a pit testimony on that point and so there you know for the plaintiff to say well this was our theory and there was some evidence that supported it so the rest of it should be disregarded that's just not the one way law and the plaintiffs can have a theory of negligence and the defense can say well even if they had occurred we don't agree that's negligent and that's our position and we think that the that the jury's verdict should be reinstated if i don't have if i can answer any questions i think the court