thank you good afternoon and afternoon misdoubt any time you're ready you can start very good good afternoon your arse for the that the that the court the trial court's failure to instruct the jury with three specific issues one the i p i one thousand two hundred and five that deals with instructing the jury that the contention that another cause such as a preexisting condition that may have contributed to the death of vicious even in this case is not a defense that that with them alone is reversible error we also submit that the non i i instruction we tendered on last chance or loss of a better outcome in this particular case the failure to get that instruction is reversible error alone and then also the failure to give an i p i instruction thirty one point one three dealing with life tables there is some case law saying that that failure can be reversible error but certainly it's our position that if there is a retrial in this case it is critical that we be allowed to present those light tables to a jury so go into each one of these instructions and i will try to hone my arguments as much as possible i won't reiterate what we said in our briefs but to put these instructions in context i'd like to start with the articulation by defense counsel during his closing argument where he said quote and this is on page nine hundred and seventy seven dollars of the record the only dispute in this case really is whether there ever was an indication of an abdominal abdominal process that could be treated surgically we agree we agree that that was the only issue presented for the jury's review that's the negligence issue for which we brought forth quite substantial evidence from numerous experts and treating physicians and of course the defense countered with their own experts and of course examined the various witnesses but meant that keeping the pants the issue in mind pluggable legal standards to decide whether or not we are entitled to a new trial are they at the jury must be correctly instructed on the law that is so fundamental in our system and also that the plaintiff is entitled to have the jury instructed on all issues that have been reasonably presented by the evidence i know it's our burden to explain also why any other instructions given in this case didn't cure these errors and i will do them throughout my presentation but it's our position that the failure to give at least two of these three instructions the st two was an abuse of discretion and under quite a bit of case law constitutes reversible error because it deprived the plaintiff of her right to have the jury instructed on her theory of this case namely that the defendant  deviated from the standard of care by not performing the surgery for the small bowel instruction and failing to not do it in a timely fashion the more precise instructions are laid forth laid out in the issues  instruction and just as a footnote regarding the standard of review because this is a point the defense made in their brief the recent bailey decision that we've cited as additional authority crissy end of the decision and that when deals with the last chance instruction  st and foremost but at the end bailey court points out that when the jury the correctness of the jury instructions are at issue the manifest weight of the evidence standards in a clickable you never get to the act and it would make sense logically you can't talk about of the evidence if the jury wasn't instructed correctly on how to evaluate the evidence all right with respect to the st instruction at issue i p i twelve o five i would like to bring to the court's attention and this is setting t this instruction because quote she could not recover for conditions which are due entirely to a previous disease an incorrect statement of the law and of the evidence presented in this case the reject it defense that a preexisting condition was the cause of the death and this is important because preexisting conditions come up in medical malpractise and negligence collision cases all the time but they come up for a variety or they can come up for a variety of reasons for example the evidence about the existence of a preexisting condition might come up to explain that it's not relevant or that  defendant is still responsible for error of aiding a preexisting condition however the case law that we cited including supreme court case law states that once the defendant places an issue the defense that the patients preexisting conditions were the cause of death or the cause of the injuries death triggers twelve million fifty one thousand two hundred and five is the only instruction that tells the jury it has the right to reject that defense that it's not a defense without they have the jury is left just to evaluate the various causes and they don't understand that the law the law of illinois enables them to reject that and this is critical because that is the only way the jury can fairly and fully and distinctly as the bailey court says of failure rate the evidence present and let me ask multiple causes of an injury and all the plaintiff has to prove is that the negligence alleged was a proximate cause of the injury it doesn't connect the jury with the next step that illinois law to evaluate this defense of the preexisting condition and it gives them the right that they that they can reject it nothing in fifteen no one tells a jury it can reject that defense only twelve o five do well there could be an implication that because there's other causes it's left to just pick one it doesn't even educate the jury that there can be evidence of multiple causes of the injury in this case the death but again honing in on whether the defendant committed negligence nothing in fifteen no one tells and they can reject this defense of a preexisting condition the jury you know the decision say it we can't just assume that's what the jury will do stated another way prodigies yes it allows for the argument your honor but actually in the various cases and i do believe it was even whole when the problem with that is the at the jury's left with argument of counsel and argument of counsel is not evidence it's not a statement  law twelve o five is a statement of the law and i could go through the various cases but you know the bottom line is this is the only instruction this case the  facts of our case cried out for twelve o five this is our theory and the bottom line is that if we presented evidence that you know the evidence we presented we were entitled to have an instruction on apt and we were entitled to have the jury focus as the defense counsel said and the only issue being whether the defendant dr failed to perform a small bowel obstruction procedure in a timely fashion that's the essential issue twenty one one was a burden of proof instruction has nothing to do with proximate cause thirty twenty one was the damages instruction has nothing to do with proximate cause now also proximate cause obviously was is a key element in every professional negligence case but here you don't have the lack of twelve o five which i submit alone is a basis for reversal but we also were denied and are now and i had last chance loss of a better outcome instruction uniqueness of the facts in every particular case we will not have an i p i instruction for last chance or a better outcome these instructions must be tailored to the facts of the particular case and hope directs  if we if the plaintiff presents evidence this theory of the case and if we present some evidence we are entitled to have the instruction now again if i could to put  context the trial court the trial court never ruled that the form of our proposed instruction was flawed or bad and i think that's important because with the trial court said the reason the trucker rejected this instruction is because the trial court believed these disused organs were an exclusive cause of the death well most respectfully that's for the jury to decide we were entitled to have the instruction evidence was presented and again this brings everything full circle the jury had to be correctly instructed on the law now in houlton again that's the beginning point to distinguish it articulated they have this type of instruction should be got given under two different circumstances one if the plaintiff or the plaintiffs to see if it was deprived of the chance to survive and that's the evidence we presented here and it will lessen to the end that effectiveness of the treatment which is different from an increased risk of harm in a traditional proximate cause instruction so the evidence we presented in this case was twofold with respect to mr so bar the evidence from our experts and various tutor showed up when he presented at  th by the th there's expert testimony saying that on a kurti at level he was doing well he was stabilized and the x rays suggested an obstruction dr and by the th his condition was worsening it was worsening by the minute up until the point he died but even through the th the expert testimony stated it was presented to the jury that he would have survived the surgery so our the is the better outcome and we do not have to prove that he would have actually survived or that he would have been cured or as the jury asked that he would have been fixed we just had to present this evidence and then similarly we were entitled to have the jury instructed that illinois law permits them to find that the defendant's negligence took away removing this chance of survival and chance of a better outcome for the patient and justice smith schmidt like your prior question the case law explains it again relying on argument of counsel is insufficient the jury is instructed to be entitled on this law now bailey case that came out could not be more helpful i think to addressing this particular issue because there's a have five minutes thank you very much thank you very much that is correct and may it please the court your honors the st i would like to just address a couple of quick factual matters and then i will delve into the legal arguments there were some serious allegations made in the reply brief false statements and misrepresentations by the defense by defense counsel in this case that i feel must be responded to the defendants did not misrepresent the record dr jones and dr ratner both testified that there was no indication for surgery dr jones was asked dr in your care and treatment of misters o'barr during this admission in your opinion as a family accuses the defendants of making misrepresentations regarding those facts so i wanted to provide those sites to the court so that they can check and verify the plaintiff has also accused us in their reply brief of making false statements concerning their expert dr greenburg that his opinion was contrary to mr treating physicians as to whether there was ever an indication for abdominal surgery to be performed and i've just read to you the answers from dr jones the indication to do surgery and i'm sorry to take the time but i felt that those allegations of rule three hundred and forty one by elations by the defendants needed to be addressed with that i will turn to the argument that the  effusion the liver problems the kit kidney problems those could all be part of the mix and if the defendant still engaged in negligent conduct that could be a proximate cause it did not need to be the proximate cause of the injury there is no illinois case law stating that twelve of five must be given where one thousand five hundred and one is given and i point out that the only case cited extensively by plaintiff during this argument and in her brief the long form of fifteen i want actually no form of fifty one was given in alec so the discussion in l a about what is required with a twelve or a twelve by instruction has no application instruction you do not need a twelve of five instruction you do not need plaintiff attempted to distinguish state case but it's the same situation there was a human telma existing in b in your party that was not caused by the defendants the plaintiff argued that the defendants necked the colon and caused injury in addition to the human and the argument was made that twelve o five was necessary and three years of precedent following hold that says no additional not i p i last chance instruction is required where the long form of i p i fifteen  no where in houlton does it say that you must give an anon i p i last chance instruction plaintive i am not sure where she's quoting from but nothing in houlton says that so we look law in last chance medical malpractise cases so we have twenty three years of history post holton no not a no i p i instruction has ever been created for the last chance doctrine and we have all of these cases expressly rejecting the argument that plaintiff makes here it is not necessary for a non i p i last chance instructions given and it is certainly not an abus discretion or reversible error to reject such an such a proper instruction the bailey case which is a relatively new case one division one panel of the st district has reached a contrary result that is the only case that so holds where they did find that under the facts and circumstances of that case and the language of the particular non i lost yes instruction used there but it was revers bmit that bailey is wrong on the law the whole court took great pains to lay out that it was not adopting a separate theory of recovery then there was no separate theory of last chance this is nearly up concept that enters into the proximate cause analysis they took great pains to say they were not relaxing the proximate cause standard they were not creating a new avenue for recovery submit that is why there has been no i drafted or approved to address last chance that is not an oversight that is not an accident that is a deliberate choice to not have such an instruction medical facts here are still vastly different and the language of the proffered last chance instruction is so different that bailey wouldn't control and mandate a different result and i do want to draw the court's attention really it was undisputed that if it is scenes alleged bacterial sepsis was timely treated with antibiotics she would have survived we don't have a lack of time the treatment in our case we have a surgeon who evaluated the diagnostic results that were presented to him found that there was no surgical abdomen and it was not a condition to be fixed by surgery deceiving other problems his medical condition was so fragile that surgery would not have been his chair or it would have killed him and there is a plethora of evidence throughout this not a mechanical obstruction it's a paralysis of the bow surgery cannot fix that it's contra indicated for that situation even if there was a mechanical small bowel obstruction in eighty five percent of the cases if you insert an entry to which was done in this case medical non surgical management the small bowel obstruction results with that treatment that is what happened here as of the morning of the th the small obstruction or ileus whichever it was was going on it was resolved it did not require surgical intervention the plaintiff has argued that it least someone testified that cla have to prove that he would have survived the surgery we just have to prove that he would have been offered the surgery and that he did have a surgically addressable problem nobody ever testified that mr zawar could have survived the surgery or would have survived the surgery and that quote is that the record page nine hundred and sixty four dollars counsel today has said even on the th he could have been operated on well st the results of the as a medical condition declined further medical intervention no they didn't want him into abate it they didn't they put in a do not resuscitate they have medical treatment removed and he was placed on comfort measures that was to th in the afternoon so the argument that surgery should have been performed at that point i don't know what that would have been addressing because the small bowel obstruction or ileus whichever it was was resolved by that point and the feeling we declined further intervention so we don't have we don't have a situation now i do admit dr greenburg said that you could still operated on him on two hundred and ninety but the family declined and there was no reason to operate on him when the back condition has resolved with medical management i do just want to briefly touch on  the last issue which is regarding life expectancy there is the trial court did not abused its discretion in declining but like tables in this case the undisputed medical evidence was that the pla only had it one to three your life expectancy because he was suffering from incurable cancer this was the plaintiff's evidence the claim to put on the treating oncologist who indicated that this with this argued to the jury at page one hundred and sixty eight of the record and i apologize there's an error in our brief that live in a roni its record page the correct site is page nine hundred and sixty eight dollars of the record at lines twenty three t dollars plaintiff counsel argued to the jury quote we know he was only going to live one to three more years and quote so with that undisputed evidence and these arguments and admissions by plaintiff's counsel there is absolutely no reason to find any error regarding the trial court's decision not to have life cables and instead to list the life expectancy as one to three years in accordance with the undisputed medical evidence and the admissions opening statement and closing argument that the plaintiffs mate and i will just cite the court to the morris versus computes the case from the st district that the trial court relied on in making its decisions and finally since i have just a brief amount of time in this instance the i p i instruct the not i p i last chance instruction the trial court did find in refusing that instruction that it was vacant confusing the language talked about delaying treatment and we don't have a delay in treatment here the language talked about diminished recovery diminished outcome i'm not sure the difference between recovery and outcome courts own words the tendered instruction was facing confusing so even if it otherwise would some form of last chance instruction would was appropriate and we don't submit any form was but even if some for appropriate the trial court finding that this one was begun to fusing warrants the decision it made in rejecting there's no reversible error and we asked that the decision below the affirmed thank you thank you needed it's not our position that every time one thousand five hundred and one is given you must have twelve o five it's our position under the law that when there is medical negligence alleged as is the case here and with the defense in the the only defense they injected was the patient's preexisting conditions twelve or fives required and there's ample law with bills identical facts that we've cited in our briefs number two counsel  testimony was about his better condition on the th and th and let us not forget that a jury is entitled to use their common sense and their own life experiences to help you are healthier you are at the time of surgery the better chance you have of surviving the surgery and the better outcome your way out and those are in the instructions they don't have to check their life experience at the door dr alerts parappa testified he was stable on the th and he had a moderate to severe risk with respect to the surgery but again he was the patient was healthier earlier and even on the th we're not talking up until late in the afternoon where his condition was so bad that the family rejected further interventions there was testimony even from dr greensburg and others that he could have survived the surgery had they have been done up earlier on the th dr wrote nick testified that the surgery could have been required if it was a life threatening condition which it was for mr sober and this case you know it's interesting counsel as the court rejected because it's so similar to our set of facts we have a professor a liability case a problematical malpractise case where the defense pertain to an underlying instruction does not cheer the need for a last chance better outcome instruction and the appellate court rejected it because it said if we didn't have the last chance better outcome instruction as authorized by holton our supreme court one thousand five hundred and one would swallow up the last chance doctrine and jurors would never be able to learn how the last chance is to be applied to practice and cause only with the instruction theory excuse me quote the theory will be properly before the jury and it will likely give it more consideration close quote proper consideration the jury in all the cases we in excuse me the cases we've cited in our brief the jury has to be instructed correctly on the fairly and distinctly so that it is proper consideration to the evidence presented in the minor league let me ask you one question but there is  good chance is that really a damages instruction it's a proximate cause instruction it's that the defendant negligence took away the chance for a better  outcome and they had just one of the causes a proximate cause of the ultimate injury so that is how it is articulated in the case law and lastly your honour's with respect to the wave tipples of decker how my very limited because i know the video transfer was filed with the court and page twenty one doctor can tell said i told i told stephen i thought it was inevitable that his cancer would reoccur but no one can be exact about those predictions talking about himself later on in january th he said stephen was in remission there was no evidence of any new disease he was stable from an on  intel said i expected the disease would return in a year or two a quote but i couldn't be specific as to when that would happen and then he went on to testify steven had a more prolonged response than others to he said he was fairly stable nothing from can a cancer standpoint seem to be any different there was no progression of his disease it was control reasonably well and then he talked about the average life expectancy per diagnosed with stage four mental celt lymphoma but again he said when asked about stephen's life expectancy quote it's hard to state with any great detail because if he became acutely ill as a result of the reactivation it may be hard to treat but he was still heavy survived the surgery a that's a better outcome but stephen was in a stable condition and he was in remission if and when that cancer came back he could have undergone treatment and so we had doctors can't tell us testimony but the white tables are admissible evidence of a jury wasn't titled to get that and so if we are fortunate enough to get a retrial the evidence should go to the jury so that can result that ultimate question of fact summary judgment was not entered that there are only one to three years of life expectancy thank you rogers very much for your time and attention today we think both of you for your arguments today will take the matter under advisement and will issue a written decision