here to challenge the onerous standard of clearly erroneous in other words we have to demonstrate to the court in the course has to be convinced that our position on these points leaves it with a definite and firm conviction that an error was made with respect our first point in that regard is whether or not consent was given dr pleasure could not remember this particular consent giving process and so he relied upon and the government relied upon having a routine practice and a lot of doctor pleasure to testify to is routine practice of giving consent which would include mentioning local nerve injury with possible chronic pain  it's if the patient forgets things and testifies that the doctor i can't remember the doctor giving me any kind of information about how come of this surgery that doesn't necessarily prove that the doctor didn't  get prior consent i would agree with that your doctor said it is usual and customary practice is to give it and he may not contemporaneously under oath in the medical notes of the hospital records and that he would practice when you do this and he and makes an entry in the chart the actual progress notes that were in front of him at the time he was testifying i asked him if you found any such note anywhere because he had been through that position and if now he's in trolleys reviewed the whole chart and he said he didn't we didn't either government didn't either so there is no note and his usual practice is to not just chart some doctors such as in the chart itself you see permit training or words to that effect this doctor is much more thorough according to his testimony on his usual practice when he gives consent to a patient before going into the operating room  face make sure that there's a hernia there operate on tells him what we're going to do make look at the chart make sure there's no glaring reasons not to do the operation and then explains to the patient what we're going to do and what the risks are and he includes the risk we're talking about here in that pitch and when he does that he charts it as he's standing there with a chart in hand and makes an entry that that specifically states what i asked him what do you mean by that that effect and he followed up and he said because i thought maybe he just said permit attained or consent to pain he said he actually writes down the risks that are explained and what the procedures are will give the patient sign anything was not contained in that permit so my point judge beezer and granted that the plaintiffs had was not only forgetful about that particular event but other things around that you know he didn't remember he didn't say hi remember i did it but i don't remember but it's my routine practice and i said ok what what about this other party routine practice that's what i'm arguing it's all part and parcel if if if court you're going to say the doctor didn't give a no i'm going to lose that ok i'm going to win now because hopefully because his hair fell it doesn't remember michaela doesn't remember but i got how can you make a logical inference if part and parcel of the same routines is not only speaking it but writing it down in the chart and you have the absence of number two of that equation it's not logically logical to the inference further and say that that routine was followed in this occasion the only logical inference from that is it wasn't fall because dr plus you can't say whether it was or wasn't so the only edition of whether it was or wasn't this is a chart and there's nothing in the chart ergo that this routine was followed if it wasn't followed in totality it makes no sense you can't reach that conclusion was there any evidence that there were this form that was signed was an exception to the normal routine you know the form the form was dr pleasure says i have nothing to do with the form and i don't rely on the form i district and the that in reno it was my privilege to represent the united states in the district court proceedings as well before this court medical malpractise matter that was tried to the district court under difficult tort claims act there were no eviden y issues in terms of admissibility of evidence the material came in documentary evidence testimony of various witnesses some of the testimony was nine controversy all non conflicting obviously some of the testimony w were supported by evidence they were contradicted by other evidence and the district court was obliged as it does every day to evaluate how to resolve that conflict if three findings which are the focus of this appeal were not clearly erroneous because they were supported by credible reliable evidence testimony that was presented on the issue of consent which was the focus of much of the council's remarks to the court this morning mr gilmore testified that this particular risk was not identified pre surgery clearly that's what he said if that was the only evidence that was presented the only testimony that was presented on that issue the district court very likely would have been obliged to make a finding corresponding to that testimony but that was not the only testimony not the only evidence that was presented dr pleasure as you've already heard the previous colloquy testified about his practice his routine to meet with patients prior to surgery particularly if patient that he had never seen before this particular patient was followed pre surgery by another doctor d about the risks of the surgery namely occurrence of a hernia leading infection you remember any of that even though clearly that's charted in the record and dr being felt testified about that you don't remember patients prior to surgery if they want that he's never met before even though that pre surgery meeting or conversation between doctor pleasure and the patient is nowhere reflected in the chart  acknowledge that thakur plus is clear testimony was that he would never operate on somebody without talking to that patient prior to surgery the fact that it's not reflected in the chart does not mean that it didn't happen i know there's this general notion out there that if it isn't in the chart it didn't happen well plainly dr pleasure met with this patient prior to surgery the issue at trial was what the doctor pushes they did the patient prior to surgery and we have dr poshest testimony he does remember this patient that's not surprising but you did just fox testified to first of all he never operates on somebody he's never spoken to so he did speak to this patient and then he described what he sa every time he is preparing for her repair surgery on a patient and he talks about nerve damage among other things it was one thing in the magistrate's findings that from a little bit  so he was he was fairly aggressive about sense i don't know how but the evidence that i think the findings that the court is referring to don't go smushed to the consent scales but to the other component of informed consent related case and that is that first of all you have to if that consents if that risk had been identified that the patient would have said no to the procedure and so the findings that the magistrate judge made that your honor just mentioned went to that other component of an inform of experience in kearny repairs and consensus represented by those two gentlemen and then of course mr gilmore suggested when he stands alone saying he was indeed very aggressive very interested in getting this repair it was bothersome more painful it was getting worse interfering with this is work life because you had a job that involved heavy lifting and moving things around he was very interested and by his own testimony he said he wasn't even paying attention to the risks that were being described by dr dean felt he did remember what she said he was not his actual words were i wasn't focusing on the rest i was focusing on getting this taken care described and even the doctor dr saunders who testified by telephone from florida who's actually managing or was at the time of trial managing mr buell moore's pain symptoms he said i don't know what this is from it doesn't appear to be related operation even with the risks explained and i would submit that common sense tells you that no plaintiff in one of these cases is going to answer the question the wrong way when this plaintiff's lawyer asks him would you go for with a search i explain to you that we're going to lose the case so so so you're bound to have that answer and that's why this reasonable the standard is adopted in the bad under the smith case we don't look at what the real testimony of the plight of those i mean that's one factor in the four factors to be considered but the most important factor is what were the reasonable alternatives here and dr being felt testified that she explained to mr gilmore that a reasonable alternative she didn't tell about the nerve damage but she didn't tell him the alternative was no surgery and dr catherine testified in no uncertain terms that this was a safe hernia it was reduceable on examination it was not in danger immediate danger of becoming strangulated or being a threat to the patient and so he had alternatives he testified that if he had been given this information he would have wanted to look into it further and that's the end of the hot whether he would come back for surgery after looking into it is another question for another