well here the next case george only versus st luke's roosevelt hospital just hold on while we wait for the crowd to leave care first to question the plan to question the plaintiff and find out in this case specifically about his prior shoulder problems and that the standard of care in that circumstance is that they need to provide us depending on the machines that they have available in the operating room they either need to have a four five or six person assist in the transfer of the patient and then the patient's arm during the surgery need to be maintained at forty five degrees or less from the body the evidence is that less during the procedure right what was it in fact in other words they didn't make a note as to what the angle was what evidence is there in the record to show that it was more than forty five degrees or that it was close to ninety  know first we know that dr dr chan who was the resident who is perfect who did the procedure was unaware of the risks of having the arms at an angle that's greater than forty five inches there to show that it was above forty you don't recall no your honor my my memory is that he needs to be maintained at forty five degrees or less right but if there is no evidence that it was above forty five degrees then what is the evidence that there was a departure from accepted medical practice because during an abdominal aortic aneurism surgery brachial plexus nerve injury is unlikely to occur and it's unlikely to occur unless there is medical negligence and we know here that he did not have the because mr on we was in the care under anesthesia during the procedure he's in the control and under the agency in instrumentalities of the hospital and he's also unconscious so there's nothing he can do to contribute to this and i  would it would all he could tell them about his partner injury absolutely and you'll know from the history that mr wrongly was very forthcoming in his answers one question they have a detailed history it's just that they never asked him about a shoulder and he's having an abdomin surgery i don't it's not incumbent upon the patient to identify every single prior medical history or medical problem he's had as i think unless asked if he's asked by the physician that he has he doesn't know when they're doing that in and it's on the experts it's on the doctor specifically the anesthesiologist to ask the questions to listen the information so that they can safeguard it and part of part of this case in part of knowing about why there was this breach is knowing that dr chan testified she never been trained that she wasn't aware that these types of injuries could occur and that she wouldn't and therefore she would not have asked the question so she would not have a listen to the information you know in real in the cases there's a case the physician is taking a prior medical history that they have to ask the questions about relevant prior medical history and so in this circumstance we're going to have a six and a half hour surgery it's incumbent upon the anesthesiologist or the  resident who's being supervised by nancy has to ask about prior shoulder and partial or conditions so that they can determine at which you know that there will be this positioning for quite a long time absolutely it's this is not a it might have been a mystery to to dr chen who is unaware of this but every other surgeon involved in this case is aware that that's the standard of care and that they need to ask that question so that they can properly safeguard the the patient during the procedure  as to what caused the burn both of them being the byproduct of medical negligence was sufficient to take the case to the jury it also identified that that would be a case that's appropriate for a raise it's a little cuter to apply i would posit that that case is virtually is required to show the standard of care a breach from that standard of care that proximately caused an injury and in this case his expert dr mcilree is unable to do that because the records just don't support that there was any breach from the been positioned less than forty five degrees forty five degrees or less records don't say necessarily where he was positioned it's green that it should have been forty five degrees or less if his history is known to the medical providers correct all should have been known to the medical providers if this was inappropriate history was asked and dr mcilree acknowledged when he was questioned during his deposition that based off of what dr lewis said she asked based off of her pre anesthesia valuation which uncovered a laundry list of medical history including when it came to muscular skeletal issues or freitas actual question as to whether he wants about children injur but even before he was admitted to the hospital both to his cardiologist during the cardiology clearing and the primary care physician there's no mention of shoulder pain instability or rotator cuff injury and standard no mention why is there no mention and the medical records where they go through this laundry list and as judge korman had mentioned before when they ask about most skilled skeletal issues and dr lewis also averred that she asked specifically if there's any issues with movements painful or restricted movement no mistaking ling or weakness or injuries suffered in the past as such corpsman mentioned that's supposed to cover everything so that the patient can give them the history if we were to hold as appellant is asking they would have to go through every single part of a patient's body to necessarily necessarily seem to me that the doctor should know that during this kind of a procedure they're going to prompt the person open and that would have an impact on the shoulder and that they're for they should ask about shoulder injuries i mean it is indeed generally known that if you have this surgery prior history you can't go above forty five degrees which seem to me that a reasonable physician would ask the question specifically about the shoulder not go through every part of the body on the shoulder it's true and dr lewis said that that would have been included in part of her questioning and dr bamberger who was  attending anesthesiologist testified at twelve forty four that when the petion is on the table he asks if that positioning is ok so these are other things that they ask but even putting that aside for another minute this is all presuming that the patient suffered a brachial plexus nerve injury as a result of the surgery which the objective evidence doesn't support that there's no objective evidence and so it's june or july the injury resulted from the sure or the post transfer or that it could have resulted from none of those and that's critical in this case where as by the time the pla returned to his doctor two weeks after the surgery he'd already been driving against medical advice his daughter testified that he would lift heavy objects against medical advice and due to no fault of his own he was also heavily involved in the care of his wife which involved other movements that could have affected his prior rotator cuff tear and the reality is that is just on the record as a whole in this case there is no medical record support for plaintiff's series of departure  appropriate history was taken it revealed a laundry list of conditions the positioning was done properly based off of the history that was revealed and dr macular conceded that had the plaintiff just not which is what appears to being a hyper hypo perfusion and traction event to cause the schema during the during the operation and he acknowledged on multiple occasions that there's no evidence of hypo perfusion in this case so essentially what this all derives from is that as we mentioned on page thirty of our brief and page fourteen ninety five dr meckler a test for testifies about how based off of the fact that the eventually at some point has this brachial plexus nerve injury he looked back and then tried to winnow out for exercise select portions of the record to craft theories which as a matter of law is insufficient under new york medical malpractise jurisdiction but when we review the record as a whole what you mean by in isolation could a reasonable jury find from that testimony that he was not asked about his prior rotator cuff injury they could find that wasn't asked that specific question but as we've been discussing is that's just getting so specific and that doctor dr lewis testified that she had never been taught anything about improper positioning of the arms during surgical procedure she talked about brachial plexus injury that she she attributed she testified i'm reading from the blue brief a page thirty in general nothing that i have been taught has anything to do with positioning and a reasonable jury could conclude from that testimony that she didn't think it was an issue and therefore particularly given on ways testimony that she wasn't she never asked the question they could but that a factual question for a trial not under these circumstances because dr makary that also goes on to say on page thirty two of that brief and it's fourteen eleven of his testimony that he can't connect the dots her training if there was some lapse in her training just that i have to to lead to inadequate questioning which would then have to eat lead to inadequate questioning which then income combination with profusion and traction standard of care and then we also whether the positioning or the transfer in terms of the hospital's liability yes because we don't have objective evidence of an injury until months after discharge if we know that it's one or the other if a reasonable surgery and it's in a location something it's not for example the burn injuries that doesn't happen absent negligence in this case larry even acknowledge that it could happen in the absence of negligence and that's that's why this case falls out discussion was mostly about the causation right and that was another aspect that we're seeing with the positioning it depends on there being hyper hypo profusion and traction of which there's no evidence that that occurred and all this had to the time that they were treating the plaintiff not with the after acquired knowledge that at some later date he developed a break your plexus nerve injuries so that's why that's very significant and why the question was posed to the doctor during the case is just not sufficient for a reasonable jury to find in favor of the appellate thank you thank you we'll hear the we have the testimony from dr chan who says that she asked and we have the contradicting testimony of mr on the way he says that he wasn't asked it's a question of fact we have the testimony of jury could answer determine that and should determine that question in fact here we have a patient who goes into the quintessential black box and in a black box one of only one or both of only  two could have happened either he suffered an injury to his shoulder because of positioning during the transfer more or he suffered an injury to his shoulder because of improper positioning and we know that because dr  he said that sir that it's possible that it was neither but he clarified those answers to stay that it is the only to one end or the other the transfer or the positioning that are reasonable medically probable and that given the weight of all of the evidence it's more likely one or the other and that was the basis of his testimony and his questioning he was talking about  testimony and how the jury's going to i think understand the testimony as he sat down with his understanding of how the operation happens how the procedures done how the transfers are done how the positioning happens and given the medical history of this patient and he went should try and figure out what happened what caused the injury and he went step by step through it and ruled out the things that were unlikely improbable medically impossible and came to the only two rational reasonably medical probable conclusions that it was either the transfer and or the positioning that caused his injury thank you thank you reserve