don't do that the difficulty is that you wind up with bone depletion what the prednisone is to deplete the calcium in the bone resulting in a loss of yet supplementation it can be done to limit that in effect to id bon zation from harvard in andhra chronology who was going to testify about the standard of care saying that it was required that you supplement after you go a certain period of time not supplementing made a difference in producing the compression fractures another expert in the case testified it's lifetime care and the special damages up to the time of the trial are about one hundred twelve thousand dollars we maintain that in august of two thousand and eleven the standard required that you november ninth of two thousand and eleven i'm sorry september dein of two thousand and eleven he was up to fifty a day fifty a day is a big dose for a fellow who is near fifty years of age effectively he saw the doctor one time and he was going to see him again after august twenty secs the next time on december twentieth two thousand and eleven in the meantime he was on prescriptions for fifty milligrams a day essentially that would mean the passage of about one hundred days that would intervene talking about a judgment call on that extended period of time because it seems to me that that the problem here was that your expert was an expert in what what can happen the result of the lack of supplementation but it the district seem to focus on the idea that he didn't have experience in treating sort of the front end of this that that was addressed i think in the brief i talked about front and back and that kind of thing the ender chronology fellow dr rosen who testified is very expert in the area and it's not esoteric it's not philosophical if you don't do this kind of supplementation you wind up with a problem and the evidence that we presented was that the increase of fracture r markedly with the amount and the timing of the doses that you give you get beyond twenty milligrams you're going to have a problem he was on fifty milligrams for a long period of time for a four month period of time now the question that the judge posed twice to me was well don't you have to have a rheumatologist to testify to that i think not because the criticism we offer is not with regard to history with regard to physical examination not with regard the assessment that the plan and the tation and we think that's why it has to occur because under the minnesota law the one part of the standard for admission of competency of an expert is the extent of the witnesses practical experience with the matter that's the subject of the offered test me so that's really isn't that really sort of where we're swimming around here trying to figure out what is the matter that's the subjects you're saying the matter of the subject well how would you define  over a long period of time so we've gone through the history of the physical exam the assessment ok now we've turned to the issue of how do you do that how do you plan that what's the treatment of that when you get involved in doing the president's own that's how dr rosen becomes relevant to th the president's own respectfully your honor you can not supplement for this long period of time if you do you wind up with the position that mr weiss had was for compression fractures it's not so much even a front and back in thing it's the fact that you know particular types of patients may have different requirements so somebody who is a rheumatology patient put on private practice on may have different present different difficulties and somebody who's a gastro  it may be perfectly fine to do on subtle about it prednisone in one instance but not the other and you didn't have any evidence from what i can tell about eight from a doctor who treats patients presenting with those particular difficulties why isn't that a problem for you i don't think i need to have a rheumatologist your honor and i had an endocrinologist who knows about when it is not to decide to use a produce own how do you go about doing it doesn't matter in whose hands it is it is when you do it you have to be careful about dose and timing and you wind up needing to supplement it's not a matter of christian wives having these three differential diagnoses it is once you decide upon president's own how do you do it appropriately so in that circumstance it's not calling for a r to testify about that but what is dr rosen though about that i mean he writes an awful lot his published a lot he prescribes president's own he treats patients who have a he's run the clinic at harvard for twenty years he's lecturing to people in about six different years regularly and how safely to do it so the question your honor is not in whose hands it is it's when you do it with the president's own what must you do to do it safely it doesn't matter who he was asked if he had practical knowledge of what is usually in customarily done by physicians under the circumstances similar to that i was of mr was in two thousand and eleven seeing dr osbourne he said that he of doing it you do it by means of the president's own if you do that then you have to supplement that that's where the narrow part of the testimony in the entire case was about when you begin to supplement i'm sorry when you begin to spread his own you must supplement  of the patient for surgery because he wasn't a surgeon so you don't have to be a surgeon to render that diagnosis from the state supreme court that just internist had the ability knowledge and experience to comment on what person is suitable for surgery or not don't have to be a surgeon don't have to be a rheumatologist don't have to be a practical or just don't have to be an internist to know how seriously to give the president's own and that's where dr rosen has the expertise and he lectures people frequently in that area does the grand rounds i on what exactly they should be doing i'm sorry to interrupt you it's not a question about the differential it's a question about when you prescribe the medicine for the differential what must you do and if you do the president's own you may not give that bear which is what happened here so we're beyond the issue of the rheumatology dicing out what it is that he has and how you present so that kind of thing it's into the area of what's the risk involved in doing the president's own and when you consider there's virtually no risk in the fascinates there's no cause not to do it so in answer to your question your honor we're to the point of now i'm going to do it how do i do it safely which doesn't require  the that and it doesn't matter if it's the gynecologist the family practitioner or whatever if you do that you have to supplement to do it safely because when you get to certain milligrams for three to four months on a daily basis that's a real problem for a patient why you know it seems to me that the minnesota supreme court and minnesota law draws a distinction between people who have practical experience treating particular paste and those that do not it doesn't make sense from one perspective which is the theoretical is going to be different than the practical and it would be different in this case for example if your expert witness had experience consulting patients so there was some sort of practical knowledge about the standard of care is judge shepherd mentioned and doesn't that sort of separate this from some of the cases that are cited in the briefs i don't think it does your honor and if you look at the c v which is part one in the cornfield case in the sixty two northwest second in the cite i would call your attention to a six ninety six ninety four talks about the fact that you don't have to be in that particular specialty to be an expert to render the opinion the issue here is not rheumatology the issue is the safe use of prednisolone it's that simple your honor and i think as the trial court said on two occasions and i think it was three zero one and three zero seven of the transcript of document anyone doesn't this really go to the question of wait i think it does and when we're talking about this pregnancy and that's being done in a case like this it doesn't matter whose hands it matters when you do it how do you do it safely and that requires  supplementation so what what what do you think the standard of review is here on this issue the standard is was or an error on the evidence or in a row in his exercise of discretion and i think on both counts we had evidence to indicate wrong well the evidence in the case according to corn field of science you have to have a scientific background probably no question about that practical experience in the practice of spirits here lies in the area of the use of the president's own not the rheumatology part but the piece that have the right legal argument if we extended the law i think there's a lot of merit to your position but ultimately this gets back to what judge sheppard was asking about which is the abuse of discretion i mean it was a call for the district court to make even if i would have made it different call that doesn't testimony in a case like this and it's not a leap to say that when you give the president's own you have to be careful about that this was an uncharitable use of the president's own who's ever hands it happened to be done that's the position i maintain which is a simple one and  esoteric doesn't matter in what particular yard it means that if you use that be careful to supplement because if you don't you're going to have this problem so i don't respectfully think that's an extension of the law and if you look at dr  cornfield that's exactly where we are you know she said i'm not saying he can't testify because he's not a rheumatologist effectively that's what she determined in that case so if you look at that page it's six ninety three and six and four it really addresses that your honor and for the trial court if there can be seen a basis for the trial court's exercise of discretion then whether or not this court would have reached the same conclusion if there is a rational basis for the trial court it must be upheld would seem that that could be an issue that cuts across particular specialties and maybe it would be something that into chronologist would would perhaps be the ideal person to testify  would say two things in response to that and the first is what is the legal standard applicable here in terms of what expertise the plaintiffs expert has to have to testify about that and that is  minnesota law undisputed that he asked an expert witness must possess a practical knowledge of what is usually in customarily done by physicians under circumstances similar of those which confront of the defendant that's the minnesota law undisputed plaintiff agrees to th appellant agrees to that in this case i to roseanne i asked him verbatim do you have exactly what that standard says you have to have and he i said the bottom line is you do not have a practical knowledge of what is he answered correct now what i think your honor is going towards is ok what are the relevant circumstances do we need to pay attention to these well first i'd say look the circumstances under the law are the circumstances are confronted the defendant the key circumstances here we're talking about a rheumatologist seeing a patient the rheumatologist seeing this patient the patient has been having serious problems they've gotten worse over the summer to the point where he cannot walk well he  balance problems he can't sleep his local doctors are at a loss to figure out what's going on he comes to mayo he sees dr osborne the rheumatology in those circumstances the diagnosis is not dr i've been comes up with a three possible differential diagnosis three different possibilities that is something and under control just has absolutely no experience with treating such patients dr rosen the plaintiff's expert in this case an  the point of credit for which is supposed i'm not saying this this this case but suppose you have the world's leading expert on prednisone maybe even the person who invented prednisolone that a long time ago but suppose that's the case and  the world's leading expert says one hundred percent of the time there are no exceptions one hundred percent of the time you supplement prime news on when it's when it's three months or more it doesn't matter if you're  never dealt with those circumstances were present when as prescribed not for a known diagnosis prednisone is prescribed in large part to see what the reaction is something dr rosen knows nothing about to see doesn't help at all that will help determine what the diagnosis is if it helps at what dosage what changes we have a follow up checkup the very purpose of that is to see ok we have three possibilities what was the response to the pregnancy what happened with it because we as a rheumatologist are looking at three diagnosis and endocrinologist know nothing about and we're using the prednisone to try to help us figure out what the purpose is what the diagnosis might be what the response was this is something that this guy has never dealt with the law is what wasn't reasonable for the rheumatologist to do that this guy doesn't know anything about most of these circumstances and that's all true even if one hundred percent of the time you supplement yeah that's what he says one hundred percent but he doesn't know  that's true for a rheumatologist but the problem i'm having is that gets really really close to what the supreme court minnesota supreme court has said the standard is not which is the standard does not require somebody with the same specialty to go man and testify i agree and i think you could look at kornfeld you can look at really be arneson both are good examples there is no question here that you don't need a person with the same expertise if dr rosen come in and said i'm not a rheumatologist but i am consulted by  rheumatologists when they are treating patients trying to figure out a diagnosis so they want to get pregnant zone to see if it helps them in the diagnosis to see what the responses and when i'm consulting with them this is what we do this is what's done this is the standard he never said anything like that that is in the real weak case and in kornfeld one of the two in kornfeld the leader was consulted he wasn't a surgeon but he was consulted by surgeons on what to do he was allowed to testify by the minnesota supreme court the other same page cited burke court says he's not allowed to testify because he he's not in the same area and he wasn't consulted about it really be arneson ok so i don't well they had an gastroenterologist issue in the case was what approach would you take to surgery should you tie them all together or have a really ostomy they didn't have a surgical expert they had a gastroenterologist the court said that's ok and it's ok because he testified i am consulted by surgeons i'm involved in the surgery now about what they do and what their decision is i know about what surgeon standard of care is in that area this guy dr rosen had nothing like that so you're really the quarrel probably with the district court and quarrel is the nature of the testimony the no no no i don't do these things so even even though opposing counsel is now saying he does consult with rheumatologist regularly he needed to provide that practical knowledge when he was asked about it or write some evidence of that you had to provide some evidence of it and what they're saying is nothing that goes to that grand rounds or nothing about consulting on cases that's you walk around and you tell them what you know there's no testimony from him whatsoever and i asked him about that repeatedly in fact at one point he says you know maybe they respond to it differently he was asked by plaintiff's counsel well if you increase it to fifty was that significant he said it was from his perspective now again have use of discretion to take into account that there was also testimony from the am not qualified to make that assessment to sixty nine of the transcript he's admitting that under the circumstances where you got to see the reaction i'm not qualified to make that assessment so there are all sorts of aspects but the bottom line with this no he says no matter what you always give him that he's he doesn't know how we practice he doesn't know our standard of care how can you testify about the answers you can't the second thing i'd say you got into your concern is look at stole the huddleston which is a  decision by this court and stole it was really i think it's exactly your point they tried the same thing they are the plaintiff they the claim had to do with loss of matter what the surgery is if there is a risk of vision loss and he deals with surgery where there's a risk of vision loss you have to give informed consent about it you have to know about it so they tried saying same thing doesn't matter what the specific specific area is if there is a risk you always have to do it what did this court say in response it rejected that argument and said after reviewing minnesota case law however we can find no other negligent nondisclosure case or medical malpractise case for that matter in which the risk to be disclosed or the standard of care were defined using such a generalities so this court resists rejected the attempt and i'm quoting again from the court to generalize the applicable standard of care to an extent that enables an otherwise unqualified witness to offer expert opinion and that's exactly what we're talking about here the effort install the huddleston was to say take this one narrow point and it applies no matter what no matter what the doctor's area so we don't have to have something the same thing he knows this one narrow point zach same argument is here this court said follow minnesota law no that's too general you're allowing people in who don't know what's done under the circumstances confronting the defendant who don't have the practical knowledge same thing and it makes sense you can't go in and say to someone well you committed malpractise because you didn't do what a person who never deals with the circumstances you're dealing with who knows nothing about how rheumatologist prescribe things doesn't know that this dose wasn't unusual doesn't know that from a rheumatologist perspective there's evidence on the record as well that the district judge had that bisphosphonates have their own side effects and it's not something you just give no matter what it may be when they already have a diagnosis of osteoporosis which is what dr rosen deals with which was not this patient's diagnosis we don't know this patient's diagnosis to this day so that's the big picture of it and i would say that you've got then alternately three things you've got minnesota law saying they have to have this practical knowledge which this witness says he doesn't have he admits that he doesn't meet the legal standard i don't see how that can be an abuse of discretion one two you go through what he's doing he admits he doesn't have it and he tries to just expand the argument now that it doesn't matter anything except prescription of prednisone and that's ip that was rejected in huddleston as it should have been by this court for the same reason it is not minnesota law you have to have knowledge of the circumstances relevant in the case in three i would say the circumstances rolled into the case really are and that's what goes to the heart of your question those are determined first by the district court who has all the evidence in front of her and she made a determination that under these circumstances he did not have experience with the relevant circumstances facing the defendant dr that even if you may have reached a different decision with her having the knowledge having heard the testimony on the side effects having heard all the rest of it and her looking at this i don't see how that can be when the witness admits it and when he doesn't have these experience in so many ways how that can be an abuse of discretion so it's a those three parts of it ultimately get down to abuse of discretion this court's own decision decision and still ever see a situation where someone like this expert could say well i see it one the result of the person prescribe being decision has been made and here are the factors that are attached to each one of these would that be sufficient to be able to say look every time someone does not when you are giving x level of this drug this is what happens i would say no when the reason is the witness wouldn't have knowledge about all the other cases where the rheumatologist are treating the patient without these problems there's you say without these problems without whatever the side effects he's saying now that think isn't it isn't it that the bone loss isn't that really what what we're talking about here when you write lead to this particular there's a lot of dispute over those things but let's say that that if that were it then i would say there are all sorts of patients at the witness would not know about the expert who doesn't see it from a rheumatology perspective who get any dose like this or greater and never have any problems so there are circumstances that are taken into account it isn't an all or nothing the witness doesn't have knowledge about the decisions in the factors that go into those determinations in particular how are you going to make a diagnosis that's what the rheumatologist is facing in the present is one of the tools that helps them do that without the side effects of bisphosphonates when you may not even be on them for more than a week if they don't work you don't know you're not going to start on something then medication added to this to the president's own when you don't know what the how long or what dose of prednisone will be you'll know that at the follow up appointment which is what was scheduled care to respond and i'll give you two minutes to finish up yes or i think the issue is how do you do it safely not how you go about signing what the condition is before you make a judgement about the drug prescription of drugs like heroin and so on are you answer yes next question in the prescription of a drug like partner's own as a standard of care that applies to that one that applies because of the medicine itself irrespective of the doctor making the prescription for the medicine answer that yes that's what the case is about this esoteric business that i don't know how the guy's going to do twelve or so sixty milligrams and so on i may have to think about that got nothing to do with this case this case was giving him the twelve or the fifty or sixty milligrams without supplementing that's where the problem lies in the case and that's why he has a broken back because of that and the testimony by my experts was clear on that point the treatment that he was getting stole has nothing to do with this case the case that's an informed consent case you're talking about somebody who's never done a back operation he was asked questions about what's the informed consent operation and a back operation that's far afield from this particular case the judge said a couple of times as i pointed out it pages three one and three zero seven this really is a matter that goes to weight is really dispositive of the issue in this case because what happened here was that the doctor earned in his belief that you didn't have to supplement it would take a year for the supplement to work and you can lessen that time mr weiss proved otherwise respectfully