imposes upon a medical professional a pre treatment duty to disclose material medical information about a treat specifically if that material medical information would alter duty to disclose the information the second is that the defendant failed to inform or to adequately inform the patient of a material medical of some material medical information with regard to the procedure which  reasonably careful physician would have disclosed under the same or similar circumstances the third element is that if it had the defendant disclose that information a reasonable person in the same position as the patients point it would have changed their course with regard to the procedure and for that the plaintiffs were injured as a result of undergoing a proposed procedure the plaintiffs introduced evidence to is to support each one of these  at the time of trial when the motion for directed verdict was filed the defendants admitted that the plaintive had supported the first two elements now in the course of appeal that changed that decision but for the purposes of this oral argument if you please the court like to begin undisclosed information which would alter a reasonable patient's decision to undergo the procedure so that the issue in this case to begin with is what is significant undisclosed information what is meant by significant undisclosed information depending on the case significant undisclosed information might include information pros and cons risks of the procedure itself it might include alternatives to the procedure it might include information about pros and cons about the author so that's the information but what makes that information significant significant undisclosed information well if a jury i think it's better answered by saying that a prima facia showing of the third element is established if the plaintiff introduces sufficient evidence together with the reasonable inferences drawn therefrom to allow a jury to determine that if the information was disclosed a reasonable person in the same or similar suit situation is the point of patient what if changed the course so if it would have changed the course of a reasonable person it is significant here for undisclosed information it does not require nor does any case stand for the proposition that element three requires he persists in formulating testimony of an expert that to a reasonable degree of medical certainty a reasonable person in the same position of the p think that when i began my evaluation of this issue i asked myself a very simple question why do we require medical testimony to certain aspects of a medical malpractise case why do we require a physician's  mony for those aspects a physician has education training and experience that's beyond that of the average person the average ordinary person the average or so what does that knowledge and training allow him to do it allows him to discuss what another physician would do what is reasonable for another position but the element three does not ask what a reasonable position does element three s what a reasonable person does so  very basis for the very foundation of why we have expert testimony in medical malpractise cases doesn't apply and when we look at same jemaine i think that we can see that that's really what they're talk that there is no requirement in s that there is a formulaic specific requirement of a testimony to a reasonable degree of medical certainty of reporting or a person would do x y or z when we look at say joe may i think the first thing we need to do is look at procedural postur the court really found was that it is not against the manifest evidence for a juror to find that it is unreasonable for a person to say i won't have this tooth extracted because of this disclosure of anywhere in that case the expert must testify to recycle the group medical certainty a reasonable person in the position of the plaintiff would have made this decision it focuses its analysis on the lack of alternatives in the la alternatives is one of those bits of information that we talked about at the beginning of the plaintiff has to support element three must be able to point to significant undisclosed information one of those might be alternatives so when able to point to us two significant undisclosed information which might change a reasonable person who's in the position of appointed so i think that that looking at same jemmett from a procedural posture we can see that it is  completely reconciled bullshit korea and davis and i think that when we look at the evidence that came in in the criminal trial we can see that the point it did provide significant undisclosed information which might have changed he also goes on to discuss the risks pros and cons of that all turn the three types of information that are necessary to show a jury so once a jury has information that has been informed about all of these different types of things all of this information then it's for them to determine whether a reasonable person in the jersey position would have considered this information significant would they have changed their mind about undergoing the procedure choosing an alternative so what the plaintiff has done in this case is present ample evidence that he can point or that we can point to as significant undisclosed information which the jury could look at and say would that change what a reasonable person would know what  reasonable position would do what a reasonable person and the jury does and best place to make that decision the second issue for the court today comes up on appeal and that is whether the plaintiffs stablish dude i'm the record is replete with information about duty to understand what the duty to disclose was and the plaintiff scase is nothing like the walton case and the wealth in case they say that well you don't have to disclose every risk associated with it when i talk about the risk of betting on her to talk about the risk of and i think that's so important because all of the evidence leads up to first should she made the determination that this was a big day and second one of the risks associated with the best of birth of a big baby what alternatives are available and what are the pros and cons of those  all of the evidence on the record at trial supports all four elements one that has a duty to disclose that the doctor did not disclose significant information that a reasonably careful physician would have disclosed in the same or similar circumstances that it put the plaintiff was unable to point to this significant information as information which might change a reasonable person's mind and then lastly there was expert testimony that the procedure ninety nine percent chance of success with the tubal ligation ninety nine percent chance of success the only alternative that they talked about was a ninety percent chance on pills that also made her sick so again we run into the same situation of this is not a viable alternative it's a worthwhile term it's not an alternative that has a lesser restore a better situation or a better outcome for the patient is worse off than you no reasonable person despite what they say would say yeah i'll take the last effective method of birth control that also makes me sick when they're complaining about the fact that they had it and so again what we're faced with is eight no alternative at all and so why does that make sense it makes sense of because the puzzle earlier spoke that the above fact that the in symptom it was no alternative she had a choice between having a tooth extracted for that sense when i want to know if it makes sense because that expert testimony will define the alternatives just as it wasn't seen cho had they present this to to the jury and so it was she could have had this tooth pulled or not now it's stating the facts of this person would have done when presented with this as opposed to the testimony of the actual plaintive he said i would overtop i would have opted for a c section what we had in the present case is an expert witness who gave a laundry list grocery list of generic complications to that of a birth and a c section at no point that the experts say the doctor dietrich should have said this should have warned the patient of this precisely all he said was there are a couple occasions with zero and eight and he was there i wasn't there testimony in this record expert witness testimony presented by the plaintiff about how dr di correct should have told the plaintiff about these various problems and give him an a bomb how a c section was an option all that was provided was generic list of  complications at no point so your answer is nothing was presented with support of that fundamental claim because if that's true then you would have to even reach the other issue would we i mean then we would plaintiff would have failed to present expert that's a bit troubling because i would expect that if in fact the defendant had failed to present any evidence that dr detroit should have told the plaintiff about these complications and should have express that the judge drummond did not mechanically applied the same jam case to its ruling there is an alternative ruling here and he point you've pointed this out he said that the first week knowledge that there was no expert testimony as to what a reasonable person would do he then said this is a quote that this is particularly important in this case where the experts seem to pull back on the liability of estimating the final weight that until the child was born that's hard to do and what that is hard to do he pointed out that none of the methods for estimating fetal weight are reliable and you specifically noted that this was and that fissionable basis for the partial directed verdict so this was not just of a mechanical application of the no expert testimony rule he is applying this to the specific facts in this case so you ask how does this play into this how's the fact that this unreliability played into it when dr benson gave his testimony as to what should have been the what dr t trip should have said it would have gone had he been asked this question which he was not what should doctors dietrich have done the answer would have come of something like this we have a number of unreliable tests for showing fetal weight right now all those tests are in the normal range it's possible that we could do another test and it would show that the your child is it is in excess of five thousand grams but the that test would not be reliable now based on this unreliable testing do you believe that you would like to relinquish your stated desire for a natural childbirth and choose instead a c section which has a number of complications of its benson been asked that question hey answer truthfully because those were the unreliability of those tests is a is a significant portion of his expert testimony the case with a collapsed there's no case at all it's based entirely  speculation all so he avoided the question instead of saying we have a number of unreliable tests that you might need to consider and you may want to take this into account in deciding whether you want to continue with the national net natural childbirth he avoided that question actually didn't avoided it was never asked instead he merely gave a generic list of possible complications that could  child and yet he admitted that there's no reliable way of actually confirming that now as i see it there is no objective evidence whatsoever in this case a fetus in what eight to nine palls she told the patient that she had been monitoring the way to the fetus that all tests appeared there were some discrepancies but all tests appeared to show a fetus in the normal range mother the option of the liberator fetus with an estimated weight of five thousand grams or more by c section she may have made that statement however there was no evidence no no test that had shown that would even indicate a child of that size a fetus of that size drummond realized that that would be incorporating evidence of all of the tests that the stablish a overweight fetus were unreliable and on that basis we are put in a position overstatement to say that there's no requirement on doctors to discuss with their patients the results of tests in the us their hundred percent  of what those tests suggest the other words if you're doing tests and there is uncertainty about a child might be five thousand grams or more seems to me that the proper thing to do for a physician of this situation say we can't say for sure but you might be having a big baby here this could create problems and i would resist him to be this now and the tests that were performed why would the test be performed and is it your position that the tests are of no value which seems to be what you're suggesting to either the physician or the te like a fetus yes of course it would be a duty to inform in this case they had no such evidence not at all and i go back to the st john case where the the choice was between know it's really hard to say if we disagree with the analysis of same gender for holding that there's got to be evidence of what the reasonable prudent person would do so from the evidence of option of a c section second my expert benson mentions that he thinks it's forty five hundred pounds or c before you were five hundred grams but it could be five thousand and then third in the opinion section i asked specifically do you have an opinion based upon reason of a reasonable degree of medical certainty whether a failure of that discussion to take place violates the standard of care he goes on to answer and i think the part that the court was talking about and just absolutely directly can from one of your questions or answer one of your questions at the end of his line of that line of questioning he states there is the chance is more likely than not that they met for some a baby would have been identified and then the standard of care would require that she discuss the risks and benefits of bajan of birth versus a syrian section so where is that that is i can give you dependants or these are the sixes to ninety four lines seven through ten the entire line of questioning where it starts with a question that i asked is eight hundred ninety three line two through that page and then through the website that i gave your honor so he does say that these tests have some problems with reliability but in this case the in was asked did that rule out the possibility of amniotic fluid be an issue get that ruled out that possibility well you still didn't think it might be a big baby now i still didn't think it might be a big baby that's two tests that show that it might be a big baby then there's physical publication  neighbor's name but where you physically play your hands on the patient determine the size of the baby and the doctor says on the site that i just provided the chance is more likely than not to measure some baby would have been identified and then the standard of care wired this discussion of the benefits of fashion over versus series section it is in my opinion without question at trial i think defense counsel might have said it best he merely laid out that there was a duty and then he testified that it was a is the answer your question he did not address that he did never claimed that that information was not given the entire argument was based on st germain and that same to me some have requires a very specific and formulaic testimony o physician that to a reasonable degree of medical certainty in ordinary person in the same position as this patient what if chosen a different option that was the entirety of the directed verdict argument and that was the entirety of the judge's decision the communicate this information to the point no your honor he stipulates at the very beginning of the argument that the plaintiff laid out duty and then the expert testified that there was a deviation from the standard that's fact about the expertise talk about there yet se