mourn your honour's made police a court council we are here today on the appeal of the trial court's granting of summary judgment against oxter lou with respect to her claims for specifically on this appeal could you speak up was right specifically on this appeal the discrimination and retaliation claims that she alleged in her complaint as we cited in our brief and it appears consistent in the a pelleas brief there's not a substantial debate here on the law i think there was one case where we should center debate on what the law the law to be able by what we do have is an extremely large body of facts and the peer review hearing committee that conducted the hearing in this case head over nine days of testimony thousands of pages of transcript  but ultimately what we're looking at and i think it's in looking at the apple e s brief what we see is that if we look at some of the specific issues that were that were involved one being that  you can ask counsel when it comes up if there was a policy with regard to treatment of complicated appendicitis or any type of appendicitis with regard to antibiotics there was no cause dr lou was granted privileges under the bylaws of the hospital just like all other doctors and order for those privileges mean she could do anything there's no there is no supervision of the doctors if the doctors are granted privileges to production ducked whatever the procedure might be then the relief that the hospital has with regard to stopping a doctor would be a summary suspension followed by an immediate peer review committee hearing which would then go to the executive medical staff which then if appealed would go to a peer review hearing committee which would then go to the joint conference committee and then ultimately have to be approved by the board of the house isn't that what happened and no that is not what cited their specific statement the heading of their brief the plaintiff's insubordination distinguishes her conduct from all of the other searches there is no insubordination for a doctor electing to treat appendicitis with antibiotics if you don't want that doctor to treat appendicitis with antibiotics there's a very simple step you have to take bring them up on peer review and stop it you can't send them letters and say i want you to stop you can't you can't take informal steps to try to convince a doctor that she's endangering her patients you can take informal steps but but it wouldn't be fair then to then terminate her or report her to the national print well this is institution receives surgery and four more four days later maturer wrote donahue about his review three more fantasize cases doctor who treated nine operatively that should have been operated on immediately and then there's more of this on the member sixteen november twenty first january wasn't being accused of retaliation to they ordered a peer review they had her proctored so that if she wanted to treat someone with antibiotics she would have to get that authority from the tractor and search the relevance of rush presbyterian because what it shows you is what could have been done what should have been done versus what was i don't know what you mean by should have been done to all hospitals have to have the advantage girl procedures for dealing with  insubordinate employee well one we take issue with the fact that she's in support but second most i say the overwhelming majority do have byelaws that provide for how to deal with doctors who have been granted privileges perform certain procedures but for whatever reason might need reeducation or some other thing with regard to how they're doing wasn't she doing some sort of a research advocating for method no she wrote a paper and she's written many paper sense and the literature sense she has left stroger is overwhelmingly supporting and about a treatment of of complicated acknowledge that and i use a rush presbyterian does differently but what about stronger how does it handle on other men other problems with its doctors it's a great point that the court brings up and in that very sentence he agreed to give up this type of surgery the remains of the hospital as a threat six urgent with regard to dr donoghue the fact is that dr donoghue was referred to the s o c but he gave up this type of surgery so there was no need for corrective action there are an abundance of things that could be done in this case the first would be as the court said come up with the policy now as you'll note in our brief we refer to it i guess as a bathroom dion maybe that  hyperbole should have been used but the reality is what would happen is the director of the hospital and the chairman of the credentialing committee came to dr lew and said listen if you will agree to this policy that we're providing to you right here it says all nine complicated cases of an aside this will be treated surgery will you go by that she said yes i will and then they said well i think we can get dr king that the chair of surgery and one of the defendants in this case to go along that as well since that would be an accepted approach dr king said no he wouldn't agree to that policy because he wanted dr lu to admit that in previous cases where she had treated no malpractise now case she wasn't allowed to defend she didn't defend that case the state the state it seemed of all sand of all the the intensive care for specialists the physician who was in intensive care at the time there is a very diverse population that doesn't answer my question i don't know the specific numbers with regard to to the physicians at stroger i do know it's a diverse population of people i think what's interesting is pretty improbable that they'd be discriminated against asians it might but to that point they've cited ten cases based as are a lot of the doctors eleven right well they asking or how probable it is that they would discriminate against women or asians given that those are such a large part of their medical staff well in the department surgery they're not they're not as much as predominantly male but what i would also point out however is in the ten cases that they have how many of their search and search female i think there's fourteen pardon fourteen i think it sounds like a lot while in the one case out of the tension how many surgeons are there altogether upwards a seventy something i believe but i believe it's upwards of seventy but i wouldn't i wouldn't say that over surgeons you know what i would point out that of the ten that did go to peer review mean women one sued for retaliation and one seven point six million dollars going through this exact same process in two thousand and twelve the exact same process she was puerto rican she alleged from an asian retaliation so out of percentage wise what conclusion  we draw from what we draw from that is that if someone comes in here and says you can rely on this process because there are lots of foreigners and women and men this process has been abused before it was abused here the p review committee i mean the peer review committee chair while he was reviewing the case was accused of improper touching of other employees and and patience and he was allowed to decide the case levine who was the actual chair of the committee left the hospital resigned after he was given the ultimatum either we're going to bring you up on this charge or you need to quit because you've been touching people that you shouldn't not that's the person that decided this and sent it back to the m s and said no we find none of this persuasive mr sweeney i'm troubled by the evidence the doctor lou responded in this formal process by saying she was entitled to treat patients any way she saw fit that her response she say that i don't know if she said it exactly like that but in the context of within the standard of care is what dr lewis means she does not mean i mean committee of herself for five years what went on here was such an abuse of it's well i'm i'm here a lot of stuff one of the things that troubles me about this case we're talking here about the county hospital right patients i assume for most patients in the city that's the hospital of last resort that right i believe it is and if you are if you're a doctor who believes that another doctor is persistently consistently pursuing a course of treatment that it dangerous patients there are so many legal protections in place that frankly patients can be injured or worse while the legal processes are or are working through that not in this case they could as they did they summarily suspended now dr lou i have after several years of a much much lower rate of surgery on acute appendicitis right that's one hundred percent disputed they cite forty one percent as the number of cases that she treated nine operative when that is a cert we asked them for the proof of that study the forty one percent one they had it done by a gentleman who is not a doctor who they don't know his last name to they don't have the records they don't have any of the records of any of the patients that they say she treated non operative lead to constitute that forty one percent study but yet they said in this brief yes i would agree with you that if you're going to seek to protect patients that are coming to the hospital you need to do that and there's a way to do it and you don't generally wait you don't i mean why would you i mean just ask yourselves would you really s memos on this if you thought you were really involving patient care if you thought if you thought the doctor was responding and promising to change your approach and you thought that would be a far faster more effective and  cheaper course and going through full blown litigation for years you now would be no litigation with proctor none at all all you have to do is say you're going to be proactive peer review committee will say yes she will because that's what the chair of the department said and for the next twelve files that were produced during the year review hearing in front of the peer review committee and that's in the record in the charts or charge were part of that record before the hearing committee so this idea that all of this analysis of dr lou's treatment of antibiotics wasn't supported by medical records is an inaccurate indeed it was during the hearing committee hearing the three person hearing committee inquiry and also the executive medical staff theory before and after the three person hearing committee had access to all those medical records so what's the what's so this was for the forty one percent number of the it was an analysis compared to other cases that she handled and that's how mature a came up with the forty one percent twen analyzed the number of cases that she looked at and what's the state of the evidence on that question just majority he gave his just one page result that he presented to the hearing room committee to the hearing committee with said that his last name is not this nowhere it was stuck in the door a study that document or testified before the hearing committees one of the defendants in this case that's who provided that information like to go back to this whole issue of objectivity and just go back to the point of where teams coming from on this team was chair of the department of surgery because earliest two thousand as to an objective standard as to the treatment of appendicitis mr sweeney is right there isn't a statute or regulation in the in the hospital that says you've got to treat appendicitis with surgery but the physicians do is they apply what they consider the standard of care for the treatment of the disease except at standard of care throughout the united states and certainly an astrologer during this relevant period has been you treat this disease with appendicitis in many of eight i get it came up she again wrote in writing i'm going to operate on these cases this is in june of zero eight and next smedley may or june excuse me the next thing that happens to kean is he gets called by the risk department he doesn't go investigate c n of all on his own hospital reviews the intensive care and mission of these patients to i c u for intensive care unit for appropriateness a twenty year old healthy male him and see what happened there was a delay of thirty one hours in the treatment by lou and he said in his deposition it was reaction was she did it again and she had just promised not to and that's when he made the decision to start constantly  patients in danger majority you have your government doors letter to donohue in the appendix in there or he says it's just a matter of time before a tragedy occurs and then and you have ject of standard here let's talk about diane bucky first second if you go i'm sure in the record you go to two three three three it's the in villains report where diane bucky has now been discharged for six days from stroger hospital as they call her friend calls the ambulance the imbalance comes she's now been six days without treatment for appendicitis the ambulance comes and you go to the blood pressure pall column i mean page they can't even find a blood pressure at this point she's near death she's almost ready to die because she doesn't have blood pressure the only reason she didn't die is because when the ambulance started pumping her full of fluids and treatment deeper alive to get her over to paleness community hospital where she underwent the emergency appendectomy in the medical records or in the record in this case in that and there was so much cost in destruction of the up point they couldn't even find the appendix in the record and they had to remove part of her bol as part of the operation so here's this case came in also to keying through risk risk response to lawsuits a center of the department chair so during the peer review process of lucky loss of community and team that included the add in the peer review process is another one of these cases where a patient was severely damage and endangered by a blues behavior so there was objective basis both by kean and by the other defendants in this case in the hospital and various departments in deciding that this was a message these were necessary steps in regards to this particular doctor in regards to this in the ideas she wasn't in support of and the peer review committee both both of their reports which is by the way included a black female physician who testified then subsequently before both the peer review later on and also the joint conference on the part of the records meeting referred to the fact that she was disobeying the directives of the department in regards to the treatment of this disease so there's just objective basis over here i mean what point doesn't the doctors have to be responsible they don't have to wait till somebody what are the racial make downs of the various components of the surgical department of the hospital i don't can't tell you what it is for the hospital but i broke down for you in the record and you haven't there is deep breakup of each of those pure review committees  s national origin to the best we could figure out from the record you're going to see in each of those e m s executive medical staff is made up of the chair of the various departments and then each department of lex a person another you can see what the votes were and just on the number of women and doesn't give you names on all of those as to how they vote if it gives you but it does give you totals and obviously there were substantial numbers of women female physicians during the various process here who have voted against dr lou and made the determination that the culprit sanctions that were being imposed so these are doctors judging doctors and that's what we have in this case if the doctor has full privileges is it too early discretionary is a person to unilaterally decide to do these things with no they are still subject to supervision by their department in each of the three name defendants in this case than a human during chemo or supervisors in the surgery department in various capacities and she had to and she had an answer to them and it was their responsibility to impose what they consider the standard of care for this disease i think i've covered and you have covered things to the extent i wanted to i just want to make one comment i mean when i was reading the reply brief it seems like we're back to addressing the issue of due process and that issue was not preserved for appeal was count well you know it wasn't it wasn't you know it wasn't subject to appeal before this court so it wasn't addressed orally as as it was in the us and the district court for that reason thank you if you don't have any questions i conclu whether or not a supervisor can direct a surgeon with full privileges to treat a patient in a certain way they cannot absolutely natural if you want to restrict the privileges of a physician who has been granted privileges there is one way to do peer review that's it there's also the possibility though of an informal consultation right certainly and if you get a promise to change ways then you would not go forward at that time with a formal process of this right is also true but what we would point out is that in every one of the cases where they came forward and said that doc because what she  do was to not treat or to to operate on appropriate cases essentially that's what it came down to what i did she way with you saying she promised in essence i'll just do what i think is appropriate she said that on  i think they they they agree with i mean they said it in there she agreed to do that the fight then became was that actually a case of complicated acute appendicitis the way you seriously damaged in those one thousand cases most of those cases nobody nothing happened at all night nothing happened at all in those cases they've got two cases where something happened in the first case look if you believe that was true of course they can do that they didn't do that in terms of the one you said they could and i said they could go get summary suspension i said they couldn't send someone e mail or a memo saying the standard of care is surgery when they admit in their brief the standard of care is not search the person whose name they don't know is the person who actually did the study dr madura provided a one sheet piece of information that said forty one percent provided no details as to the patients were how long it went on you know she treats forty to fifty patients for appendicitis every year according them that would be an astronomical number of appendicitis cases treated with appendicitis with with antibiotics and that didn't happen in terms of that the individual who almost died in the intensive care unit yes that had that's what happens when you treat someone twelve leaders of fluid overnight what happened to that patient they won't tell you the next five days he walked out of the hospital not because he had a nap and back to me but because he got overload loaded with