care be quieter that they have patient be followed up that there be an evaluation there be a biopsy which would reflect the kid a tumor are the records are practically very small there is not much they are five twenty five that the records are bought over from that other office the night before so that they're present when the patient comes here she wrote on the chart that day meaning that the record had been brought over there if they which is an inference that there was an appointment that day a dead nancy act does not apply and i have not found any case that will say that if that's what the court's position is if you get what you're under saying is the position of the court i have nothing to rebut that because what the court is saying is any time you bring  they can testify to the same thing without getting the part and not only be at the defendant had the opportunity to correct all this the point of even discovery deposition where the plaintiff testified there was an office was the play it was the defendant who refused to a to us the discovery deposition into evidence at that discovery deposition bit of doubt that the defendant had every right to get up there and say no we did not have this office visit together so the defendant is the one that creates the problem tactically and myself and that suggesting there's anything wrong in looking do that's a tactical decision on their part but they create the problem the evidence is the same on both sides and i think that the defense of a lot of the difference between the cases cited by the defendant strikes there were numerous conversations and or there was numerous tesori that is that was introduced by the plaintiff that the court had to decide within her discretion whether that specific testimony opened the door and it seems to me that the record quite clearly shows that the court did not make a determination based solely on the complaint although the complaint certainly raises the issue as counsel head during his argument today which is why was dr egan seen by dr schoenberg in the summer of two thousand or was he not and i think that that makes it pretty clear in the quote knew that it was going to be pretty clear when she was considering the motions eliminate as to whether the door was going to be open but it's certainly not any of the representation of the record to state that the judge made a determination that because this is a negligence case the dead main factor is gone and that's that's just not going out by this record at all and i think that judge mcwilliams heard and reheard these issues is a case where the wrong and i think she was quite careful and certainly with her discretion the plaintiff opened the door for the first time in the opening statement when he framed the issue introduces on this issue and it there's no case that says the defendant has to be brought in as an adverse witness for the door to be opened there's no case at all th cases it was the expert testimony that opened the door and there's no i read those cases again very carefully and there's nothing in their case it's just suggest it was the defendant coming in and first and that happens in some cases but that wasn't the case here there's also testimony by susan akin's than three or four patients her husband said she was going to see a doctor will dr schoenberg for nosebleeds to treat the nose we saw in the summer of two thousand there was specific beard that the door was open not only did he say that dr schoenberg failed to do a proper evaluation and failed to do follow up that was necessary he specifically gave evaluation based on these appointments that she says occur open the door he also said that there was a deviation from the standard of care for not fouling up so i would  important to know she certainly did not say at any time this is a medical negligence case we're talking about some treatment we're talking about some appointments it all comes at a nabc at all in fact her well within our rights to argue very strenuously that we should have been able to bring in those other conversations those other interactions to defend against the allegation that not just an issue of failing to evaluate at the office and failing to do a biopsy but for their failure to follow up we weren't allowed to explain i think now in our city home very clear i can't that was not referred to in the medical records when there's an office visit by a patient and this was undisputed there's a stamp in the record and the notation about giving some medication see unfold was made without any to her husband statement that dr schoenberg has said there should be surgery and it should be postponed till after thanksgiving and frankly i don't think that the legal theory here lines up with the testimony that the plaintiff was trying to introduce  the state of mind that that it appeared to be offered for was this is a can state of mind but that wouldn't be applicable here and to the extent that there's a somewhat cryptic reference to  testimony being able to allow statements of future action well the thanksgiving comment had occurred in the past so i don't i don't see how that helps play its case and as as far as the reason other than for the proof to establish the the truth of the matter certain to get into the issue of let's delay until after thanksgiving if that if the court has no further questions i simply in connection with mrs cornish my peers the court would have to review her testimony it's my understanding of her testimony she testified she would not have marked that notation about the anti inflammatory unless the patient was in the office and  his medical records with them and i think certainly to rebut that the testimony that the state of mind of factory against him going to see the patient was because he was told not to have surgery until he didn't need surgery until after thanksgiving and