quote absent a showing of promise proximate cause we do not decide the question of the apple literally of the off chance that what's the difference between last chance doctrine and a showing a problem cause day less pain all living living a happy and full life what those are all elements that are involved here we have somebody that could have been the run from death this and i mean at your first issue is where we were claiming pre dea would have extended life than we had their own expert dr lawrence lessig who said the pain of a level can be reduced with proper diagnosis and that's survival stuff that's all those are survival but relates to pre death pain and suffering as i write yesterday and then you have a wrongful death which to get over that hurdle you have to show loss of chance right that's  we have to show the wrongful death being the expert testimony that would have made a difference to the outcome but not only the life but also the other things that we're talking now you have to show that he would have the chance he lost was to live longer than he did that's correct which was what twenty one months well he died in july the twenty second twenty thirteen and the mistake was made twenty eleven say twenty five thought it was  i thought our so i thought it was twenty one a brief say twenty one months so what is your evidence that there was a good to a medical certainty a greater than fifty percent chance that he would live longer than twenty one we adopt the tennessee rule fifty percent right well what they said understand but day with all of that they said that my death by an os that's like the u s supreme court in this case for us to understand but the eviden if fifty percent is the standard fifty percent standard dr starke didn't meet that standard but we also have just more me of dr frederick bentley who in this is talking about wrongful death now but dr bentley opined concerning the polity treatments that were not given that could have extended his life and so i think the totality of that and then you go back to what he just said could happy to he didn't put any your survivorship claim the one thing that i find a little bit difficult to understand in this case is i just would think intuitively if if a person has cancer and it goes for twenty one months i am diagnosed that there would be some pretty dad pain and suffering but you didn't put any evidence on to that effect the only evidence or really that comes and i'm pretty death pain suffering would have been for you came in through the defense expert well i mean what do you have in your case about pre death pain and suffering that that could have been alleviated through payment of care hospice care or something well we had that we had the deposition testimony of family members we also had the deposition testimony of the nurse the game that described in the records of describe the pain that he encountered that she was that was very equivocal about he had so many other things go and on she made this she thought it was something where she didn't know he required to arkansas a procedure rules for that for us to have expert testimony on that that's one element to the point that in my brief there's sort of a line so i don't think it's but if if a person is suffering from pain because they have hepatitis c which he had plus a host of other conditions and he's also suffering from pain because he has cancer that's undiagnosed but they see pain and that as a as a result it also covers the takes care of the pain from the cancer there's really no no harm so i guess that's what i'm trying to find out is what would what from is there any medical expert who would said we would have done something different in terms of pain relief had we known he had cancer i don't think that subject was addressed by any of the experts in the kids but i think there's enough evidence to suggest that at least overcome summary judgment record to overcome to create a fact question only essential elements in this case and then going back to the wrongful death claim it is just woken set as i understand what the arkansas supreme court has said is that even if they why i think it's still an open question they said will be a proper briefcase presented to us and then i go back to the case that they circuit said arkansas would adopt the law change for the and they circuit case that aside it in any predictive way with those later cases it's gone well you're out of but it's not it's not a precedent hold didn't overturn orse say anything about a circuit case of monkey seventy of that all they did that we declined other than what judge why has asked you about which is whether there was pain and suffering pretty down what what what is there about what else is there in terms of the proximate cause he w know you disagree but i don't understand why it's anything but your disagreement is a thing but semantics break like well it's a side of the case where they do the reverse to the survival claim because it was probably submitted to the agency but let the wall wrongful death i don't think with all due respect i don't think we have to prove that he would have lived in order to have the claim for survival survival plane as what did he experiences before his death not after his death or extended death was that the discussion of black  claim fails good morning may it please the court judge murphy judge logan judge malloy my name is lindsay lawrence and i'm honored to stand before you representing the united states of america before i get started i'd just like to ask the court  if the if the survival claim that he would have lived but for this negligence fails on merit whether it's by summary judgment a jury verdict or even some yes or does do the survivors get subsection a and the court list corrects that that statute honestly your honor i've been doing this a long time and i have to say it out loud every time but that's the wrongful death action however it's brought on behalf of the staff tory beneficiaries who are still alive the district court came across a lot of cases that dealt with whether or not you can recover damages under the medical malpractise act and the wrongful death action but the wrongful death action is in nature of the underlying torch i believe the court was referring to a state versus whole arkansas two thousand and four supreme court case where a settlement of the underlying tour precluded the wrongful death action to proceed on behalf of the  beneficiaries the case that appellant counsel sites first commercial bank was an exhaustion case and that case never said that the plaintiff doesn't have to prove the underlying tort in fact the language of the arkansas wrongful death action statute says whenever a death is caused by a wrongful act or neglect a person that would have been liable shall be liable to an action for damages so the beneficiaries get to bring an action for damages force they have to prove all of successfully praised loss of life in the wrongful death beneficiaries could also recover for their own individual carrying injuries bouts of companionship and or mental anguish for the last loved one but here because the underlying we start here you've admitted you were negligent or right so they are hopeful the only issue is what are the damages if any that flows from that and and your position is there's no proximate cause because he would have died anyway  the if you can prove that there's a thirty percent chance that he would a live longer had he been properly diagnosed what is that is that where does that fit into the loss of life and house well the loss of life the supreme court has held that there was proof of proximate cause they were so i mean your prove you i mean to prove it to prove i have toward you have to prove that you did something wrong the proximate cause an injury and the value of what that injuries however i'm can well let me ask about the pre death pain and suffering why should that at least not have gone to the jury well that should not go to the jury because the only stipulation the he had severe stomach pain but it was nonspecific well maybe had they known why he had stomach pain had they known it was from liver cancer they could have treated them to for that's about points well taken judge malloy and the reason why i went on to appellant to prove that the liver tumor was what was causing the pain i mean he had chronic ailments across the board this gentleman to be sedentary with chronic underlying multiple medical conditions and so no one grows and hodges testimony his nurse she said that he did have some pain but it was very nonspecific and he was happy and stable and it was just very vague so there's nothing that ties anything that she said or even the doctor lessons to any deviation with regard to pain management you need an expert to prove that liver cancer caused i mean there are some things that we say are so obvious if you break your leg it's going to hurt you don't need somebody to say that the pain comes because your book your  experts were excluded no but dr it's just the experts in the courts if you didn't prove the case that that's correct that's correct but didn't prove the case and is this is there an r and you got an arkansas case that would suggest that in sorting out this kind of pain claim you would need an expert not as to whether there was pain but to sort out what caused it what remedy  pain and suffering from a don't know in arkansas case it's on point without specific point however you know the palliative alternative therapies a set forth in the testimony in the briefing of the pain there are pain reduction trick techniques available and you're saying well they didn't know the that they didn't prove it was from liver cancer but but they didn't prove it because it wasn't diagnosed i mean that's a circular university of arkansas for medical sciences and dr james stark as an oncologist from virginia both of those experts reviewed all of these records including dr lessons testimony and how they have the opinion that the liver tumor caused the pain they certainly could have up on to that but no one addressed that pain in the medical chart sometimes and that mr hodge in response to mr hodges question he said i would have to first determine where the pain came from then i would have to biopsy the tumour to prove that in fact it had a cellular cancer and then perhaps if that was the case then there are some things that could have helped but if certain could of course judgment on the fifth in favor of the united states not that that judgment be affirmed i mean that's just one of the factual question the the point of sex produced said that there was a thirty percent chance that life could have been and never come back and i skipped over that point because i felt like the courts in florida council were right on point the genes cases nine hundred seventy forty seven year old case these exact facts and thirty percent chance of survival and five for the exact facts before the arkansas supreme court in two thousand and one it held that wasn't a convincing argument then and so it should not be and commit an argument now the government's position of washington chance under the government's position is that the arkansas supreme court has not adopted a new theory of recovery under last chance theory and so therefore under submission i think i would have a harder battle and i case i do feel i feel like the court in whole said that we in forward we came close to adopting the traditional rule in the traditional rule is greater than fifty so while i think my reading