prevail your honor there's going to be a medical malpractise case in addition to this case for neglect there's going to be a robbery or evidence that there will be expert testimony and there's just  there's going to be an entirely different procedure in order to establish order for the plaintiff to be allowed to establish the wrongful death action which will be adequate now allegations of negligence in count one that's one that's where you're losing me because if comp laws is strictly a claim under the nursing home care act and the only reason the plaintiff brings count to for wrongful death is that the deceit who died as a and they didn't bend protect him so as a chemical decision this guy needs protection had already been made and the only thing that was left roy is though didn't do what they were supposed to do it medical malpractise in that negligence with the complaint alleges your honor is that they didn't make the proper evaluation and assessment and then from there as you mentioned did not implement the appropriate supervision of cautions and restraints if they did make the proper evaluation but they didn't implement the procedures needed to protect them yes so no is that well they didn't take into account according to the complaint this man's dementia historia faults and muscle weakness and didn't implement the appropriate supervision bob cautions and just parents as part of the treatment in the house at all the doctor taking care of them said put bed rails on or make sure they're strapped into a wheelchair or whatever i mean that's all part of the medical care and treatment of a patient broader that would obviously be an ordinary negligence claim sneer the allegation and if they let him get up to walk to the bathroom unassisted it's it is when you consider the allegations that are me which shows that the nursing home did not implement the necessary supervision based upon his medical condition did not implement the appropriate fall precautions based on his medical condition and did not implement the bed rail switch under the case on all restraints based upon his medical condition and on the face of the complaint as a decided that case it was the same type of situation if you look at the face of a complaint and it can't be interpreted in any other way than as a here we're not malpractise case then it's a question of now as to whether or not the healing art malpractise act ok so it's what we're dealing with a case here where it's just a simon said at one injures ordinary negligence will i'm having a hard time seeing the issue of law that justifies an inner like your story appeal malpractise case doesn't apply to nursing home care act cases right and there's a distinction here between count one which is that under the nursing home care act and count two which is played under the wrongful death act and the exception this your honor although there are cases that are just situations with with almost identical facts in hospitals but it is it says you a hospital context where someone is being treated a medical condition and incidental to their treatment they say rails do all this other stuff it's like saying take the meds every four hours the doctor says this is what you should do when staff  medical staff doesn't do they at of course that's healing our malpractise but when you're in the nursing home it's it's different i don't believe a delusion and also i would  direct your attention to the current house he case until one hospital was involved in the care of their the the plaintiff was only in respite care he wasn't being treated for any medical element at the time and the current they're found that he really not malpractise was a red state even though he was there for a short time because the hospital just like the nursing home still had for that same assessment failure to assess his condition his dementia and his psychotropic drug consumption becomes healing her practice solely because he personal care but i submit that what's being alleged here doesn't fall within the definition of personal care under the act it goes much further than that personal clear deals with  general supervision and oversight what's being alleged here is that they didn't look at this patient on for his better and particular medical condition and they didn't provide the assistance didn't consider all of these medical conditions and then in paragraph sixty they reached their duty in failing to respond to those medical conditions by implementing that care playing to not allowing him to get out when i think that the case that i said says that the witness that needs to testify to whether or not there was a deviation from the standard care under these circumstances where the allegation is far wisc that that has to be a nurse or a physician a nursing home administrator it would not be qualified to make that medical judgment you're saying whether someone is a fall risk is a medical judgment me be having a different discussion right now and then rich that so if everything about this patient was known to man or hear from the minute he walked in he's fragile he's from risk he's got dementia he needs his medication those decisions have been made this state does he said and made here's here's what you get when you walk in here's your the papers that you got money enough to now nursing home to protect him take care of how we said how was anything physical involved and then that is an alleged well first of all your honor if he came in with a prescription for psychotropic medications malpractise case small with chris of writing but in fact did not ever say that this was a medical case and obviously the court ruled that way because they said he to dismiss because i don't have a sixty two attacks i've stopped attaching sixty two says you saw originally i did file a sixty two because there is no clear specific case even though i think events but you file the six to two to address the ultimately die through negligent conduct at the nursing home by now i am doctor or nurse just falling back themselves and i did have to have a six to two affidavit and i you know you'd like that question answered but the question is is this a case to do it because it seems to me the trial court decided that your complaint allege ordinary negligence  each time and i basically use the exact same proof as embarrassing as it is to say to respond because it's the same facts every time and evidently the majority of judges that handled these matters agree time and defendants time but you don't force me to get the bill for the time and i don't but that's not the issue some planet needs to stop is this the case that makes it stop that's up to this panel don't need a sixty two you need a six to two no matter where you work right so you get it really depends on the allegations of the complaint that is an absolute  position that they also need expert testimony in order to assess dabbous what the standard of care is here and also to establish a breach of the standard of care and under the jackson case that's one of the one of the considerations that this court takes into account when determining whether or not there is a medical malpractise case or healing our malpractise case alleged and finally i just wanted to comment on one of counsel statements he said that you're taking into account the facts of the individual person and that's exactly are plenty your honor what the plain which has alleged here is that the nursing home did not take into account the medical condition that this individual person came to the nursing home with they did not use proper medical judgment and that allegation is one of medical negligence healing art malpractise a section two sixty two