it pains me to have to talk about his conduct in the terms of quote unquote misconduct which is the way in which these things are always talked about in the decisions i think is completely inappropriate and i think good job and may or may not that's the issue of cross the line a line which in fact is always moving because where that line is whether or not comments  perhaps where the haven't is clarified an attorney could say more with without without fear of them but the point that i would ask the court to work to consider in considering this thinking about it that way i think that the way that the case was conducted was done in such a way that that it warrants relieve under the circumstances of this case there was that was there too much emphasis in a sense this is only a decision that only your hours and length and consideration of all the record but it's not whether whether or not you know he was mr mr har lost so that with one court became a ended your honour's can take judicial notice of all the contents of the records and of course so this isn't this isn't something off the street the the the opinion that they fashion kept everything up the argument that had been vast in the reply brief instead of saying there was no reply if they took that argument the that she thought that she was right with respect to doctors and he he was going to talk about this in the context of the life expectancy he thought that was ok with respect to the other things she thought the the same way and everybody on our side was pretty confident of that now with respect to whether or not this is a good rule you know this is our fast rule got to do this let's consider the that that you know he would have been entitled so we're asking your honour's to to examine the issue of whether or not this went too far to not have to worry about whether or not case definition duty of care of a doctor in assessing the rest of taking mr shafer the forty five minute drive to kankakee where a he knows the gas rogers is going to be the next day or that i'll be all they please the court counsel this was a hard fought case with three expert witnesses on each side this is a patient who survives twenty two hours after my client learn that he had a gastric bleed he made it until six thirty two the next morning over night while he was in the intensive care unit and iroquois oriel hospital which is the accusation of wrongdoing that he should not have been in the going to be needed and then after for rio did not hear from the nurse until after the patient was already dead at six thirty two of the nurse nurse shields testified to was that at six twenty the patient's heart monitors started to drop the nurse then testified that between six twenty five and six thirty two a heart monitor dropped to a condition of  hospital in which he made accusations not only about the last twenty four hours of a patient's life but also about the last he needs of the patient's life if your honour's look at the plaintiff's jury instructions specifically the issues instructions they lay out the accusations of wrongdoing ask the jury to find out before you go and by virtue of an appointed relationship my other client your car the real hospital negligent because they did not provide timely an appropriate follow up care after laboratory results eight days before his death were abnormal the next accusation of wrongdoing was that my client was negligent because the patient was not immediately hospitalized after those laboratory results eight days before his death or abnormal what my client did in those  days was not to hospitalized his patients he was a fifty three year old man in the nursing home because he had cerebral palsy and needed skilled nursing care for his difficult to control control diabetes but my client did drew those  days was very much criticized by the plaintiff's ex by his ex birds and was very much from proved by the defense experts it was indeed necessary to talk about all of the orders that my client left for his patient to be done by the skilled care nursing home until one day before his death and all of the orders that he left for the nurses to carry out in the acute care hospital where mr share for was a patient for the last twenty two hours of his life the plaintiff's accusation of wrongdoing on my part has nothing to do with the issues in this case that the jury decide or memory as we all remember that there is a jury instruction telling the in defense to call witnesses who will testify about everything that the defendant did that bears on the issue of why the patient needed medical care and why the patient may have passed away here talked about how the patient had kidney disease and what he did to check to see if there was an eva caused by a specific oh acute problem or if it was a chronic problem and dr  nursing home that was his home for a number of months before all these events happened finally you also talked about the extreme tests that you were during those days that he was having a patient hunter and why he decided after a phone call from one of the nurses nurse horrible who testified why he decided on the evening of the of the march two nights before the patient passed away after the six hours before  needed to be admitted to the hospital as a direct hit the next morning your score who testified about how she started an i v that night because the patient was weak he was dehydrated his blood sugar was very high and so the patient passed away why is that this patient had a bloody stool that it was too felt to be a significant bloody stool that required media transfusion witch doctor for the real world and he testified about the patient's blood sugars that day he testified about the effect of those blood sugars on the patients well being he talked about the patient's hemoglobin and among other laboratory studies as the transfusion was given over that day in the twenty two hour to about a ten hour range before the patient passed away the patient's hemoglobin gradually improved and we get to the next allegation of negligence in pla seven was a statement of policy that requires that before somebody is going to be transferred before you're going to let them out of your hospital into it ambulance you must certify that they are stable for transport and dr fredo and the two expert witnesses on the defense side talked about why dr phil reader was not able to certify in his mind that the patient was stable i actually give the talking about an abuse of discretion scan here in deciding whether you try all this warranted based on manifest weight of the evidence the question we have to ask of it at this point in the appeal is is the opposite conclusion clearly schlessinger dr oz or that there was evidence saying that this patient was not in a stable condition to be certified as stable for placing into an ambulance the issue of the consultation doctor for ego went into the chart in two different places is as follows he wrote his history of physical examination testified at trial about how his nurses rater was the nurse who was on duty when this order for the consultation was placed in the chart she did not remember the specifics eleven years before the conversations surrounding this particular that the unit secretary will contact a consultant so in this case the unit secretary would have the job of calling dr volkow or his office the procedure was also th adverse examination that the jury heard early on in the trial of plaintiff's attorney asking the following question next day he answer was yes that came in introduced by the plaintiff's attorney we did not object like this attorney did not ask for a sidebar we just attorney did not ask for the striking of this testimony from that answer that came in elicited by phone and we would be entitled to argue dr phil rio's state of mind it's been called hearsay in the briefs by the plaintiffs but it is not hearsay i asked that you affirm the jury's decision and find that there has been no abuse of discretion there is evidence upon which this far he's could have been won by the defense and it was the happy history questions  attorneys by meeting an over emphasis rule what i mean by that is that when someone makes an accusation of negligence there's a reason the cases talk about attorneys having wide latitude to make reasonable inferences from the evidence and that is exactly what we did in our defense you do have the right to talk about the things that a physician did when a physician is accused of negligence for not hospitalizing someone eight days before they die and for not appropriately taking care of that issue over those eight days before they die you need to be able to give the jury the forefront text of what the defendant did and then in closing argument it's your job as the attorney to explain why you think those things are consistent with the standard of care and merit a verdict on your behalf i just stated the over emphasis argument from my opponents here is an impossible standard  about thirty days thereafter when he was suffering when he should have been in you know hospital but what the hey the separate basis for negligence was the failure to timely consol so the overemphasis that we speak of results from connecting up all the the prior health conditions with mr shavers death in with in reality there were there was no expert testimony born one of the defendant's own retained experts specifically testified that mr shafer was in fact stable enough to be transfer that testimony is in the record in volume three at seventy five and contained hearsay i did it but when i did check the way when it was brought up on the defendant's direct examination it was different testimony more substantive because then dr knows there's no gastro in around just coming into this hospital to see this patient so my point in my in my follow up comment was clarifying the drawing the distinction between not mark six you are now saying the next day well yes i should have objected at that time and i did the next time it came up but just i don't believe you can permit this exchange where a defendant volunteers a non responsive hearsay answer to then open the door to further testimony allowing the whole of your stated plan then what you're doing if you permit that judge you are rewording a defended or violent hearing and non responsive answer in front of a jury and that is is just plain unfair and improper because i can't prevent what he's going to say well it it just it is judge when it will because it's going beyond just his general intent and to go here saying this is admissible for the purpose a state of mind is just to show what general intent this guy elevated and of getting a yes through neurology concept council because our expert said he he had to either get it gastro in or out a guy in there that day or transfer him once he was stable and so