this is a medical malpractise appeal unlike any other it is not complicated it is not nuanced it does not involve a battle of the experts defense counsel has admitted political standard of care and counsel has made the admission that doctors are supposed collective judicial admissions that trial quote conceded that certain isolated factors and stated in the briefs before this court that he was aware of factors suspicious for chest pain of cardiac corey or your parents or your argument is for traditional missions i am not i'm only saying the counsel has combined those into the admission or effects for this course i think that all of those statements by doctors all at trial were in fact additional admissions and stand by themselves day by virtue of taking all those saying it's context to what this case involves and the fact that this standard of care had a very specific intent and that intent was not to have the proper care physicians acting as a cardiologist in the condition which was potentially life threatening and they didn't want doctors untrained cardiology deciding to become cardio rule out suspicious factors what becomes paramount for this cour is that they have admitted meaning they counsel on behalf of their client that there were suspicious factors discovered during the process of dying of of seeing back to jason hall in the clinic because they also admit that's the standard of care in this case is a doctor support or i think nice if a patient's chest pain was suspicious of having a cardiac origin the standard of care would be to refer the patient to the emergency room rather than try to diagnose it and this court should give specific attention to the admonition in the admitted standard of care rather  not to diagnose made the o s s standard of care and objective standard specifically intended to prevent its proper care sutter's from acting in the capacity of a cardiologist when patients pres potential life threatening conditions of chest pain suspicious of cardiac both defendants would have this court believe that the o s s standard care was a subjective standard bus enabling dr  origin and when you consider the standard of care doesn't want him to go beyond that because then he's going into an area of being a cardiologist that's the whole purpose of the standard of care if you were going to just let him diagnose it you wouldn't even need this prohibition in the scope of services it would be meaningless and in the first this evidence in the case he has admitted i was aware of things that were suspicious that could make this a priority and bad point your honor care doctor is free to diagnose the cause of his pain was his criticism of his wife's cooking but he's not free yet that he cagey as in this case objectively comes back and stays it cannot rule out negatively saying he didn't have any cardiac problem positively that it was muscular skeletal if you recall in the record dr supposed was asked this question i think you told me that if you found any more suspicion after taking the e k g big you should be for him to the emergency room correct answer yes however despite the objective suspicion on the print out of the suspicious therefore we don't believe by leave the standard of care and that's an important distinction you raise your honor because the fact that they were suspicious is not appropriate to implied that therefore the jury put ignore the suppose it may be found any more suspicion anymore then he should prefer he still did not it is our position that when you read the underlying evidence which underlies the standard of care want chest pain patients coming to their findings and that's why their website said that and that's why they set up an objective standard that said ok if they do show up then they better not have any suspicious factors precisely what the doctor did not in fact once he was aware of suspicious symptoms he went on to diagnose him which they admitted standard of care before the court says you can't do he went beyond it and it's important to consider your honor that it is the chest pain that merely has to be suspicious of cardiac origin to require a referral it is not the doctor believing the chest pain is a cardiac origin that been a nicer presentation but it does not change our legal standing here before you and that is told to what specifically done because of these types of situations and the card the trial court even conceded that we waived nothing i can speculate that had i raised that at the time it would have been dealt with the same way it was done with the post trial motion but we preserve our right course a lot under you if a poster of a motion about your course of this trial if you've read the record this is a brick by brick process hung together where also the plea it didn't necessarily see itself as what it was until the end of the trial where he said i understand what that means killing means that the evidence was coming in through the course of different testimony and by the time the case came to an end i agree with you i think that in hindsight raising this with a motion for directed fighting would have been a proper way to do it but it wasn't improper such that this court could look back and say now we're going to ignore the argument because twelve o two gives us this right and they were judicial admissions and the facts are that rebuttal but again i say to you factors a chest pain a cardiac origin and they had considered before this part that their standard of care requires that there's knowledge of that you cannot tell you got us and we have no doubt that he did diagnose and he did refer this is a very straightforward that's why my opening said to your honor that it's not nuanced and complicated it can be made he wants to complicated but under forty two we have the right to argue the very same things that we would have argued at trial his doctors would be improper as well because you could present evidence or argument to challenge a traditional mission yet you've made no such argument so that it was all presented after the fact you are the judge judge preserves it and more importantly again i think the court steps over this the breach center in front of this court have it made it these issues before the court where well number one it page two of the public trial motion is the vote concerning wh when we talk about the judicial admission and not getting it to the point of whether it was or not but even if it's if you assume that it was procedurally what you pointed out is that you know the whole point of a judicial admission is to move a fact from complete contention in the case and once you do that that's when you can say ok the jury should not be ready for the residents on a particular point and so procedurally i think the court is picked strange situation you know the closest case that we could come up with is the ones cited in the very beginning of our brief on the forfeiture sure i'm not thinking of the name right now in this district case i remember i remember offhand that was the justice lewis wrote the decision but that was the case that talked about the point that you need to bring it to the court's attention immediately and have the want because first of all it's a discretionary call to be made and i think the whole point of that decision was that if you're going to take the make the argument the judge looked at it from that perspective i think the judge looked at it and with some of your earlier questions were was taking testimony as a whole and whether the doctor took the time to explain his answers as i think the court also acknowledged its questions or explanations given to the points that mr isley contends were judicial admissions and on top of that you're supposed to also take into account the other testimony that was given the case and trying to assess it i think judge fully also recognize that as this court has t admissions deal than even the case if that this your case that you mentioned dunning versus trying to do that the plaintiffs do rely upon in this in this for this argument in that particular case it's a situation where a man was crushed by a forklift and one of the issues was the fact that the forklift had casters that could be locked and so the person was operating in admitted that he could not know that the castors could be blocked and his boss testified admitted that he never told concrete facts here we're talking about the question of you know is a spectrum of you know presentation by this gentleman who came into the proctor when it in is suspicious of chest pain of cardiac origin and that you know just it's stating that makes it clear that we're talking about a question of medical opinion not a question of concrete fact so i do think the court is you know absolutely correct that there are one this this is for know if you're going to take the position that something is a judicial admission and should be taken away from the jury so that they don't get to hear all the other conflicting evidence then you've either got to bring that in as you support it out of it was in the depositions you would make that part of a it was but i mean you know again there's also there's sort of cherry picking statements by the doctor out of context i mean yes he said chest pain can be indicative of a cardiac issue but of course the question is where is the chest pain in the chest pain in this gentleman's case was in the upper left part of his chest and all the testimony both by the experts and by dr shu pola was that cardiac chest pain is mid storm and it's a different kind of pain and when you talk about the chest pain is it reproducible and he was able to reproduce the chest pain on this gentleman by pressing by palpitating on his chest to trigger the pain that he was complaining about and that's a strong obviously i think it is forfeited i think procedurally they went about this for plea you know backwards if they really thought these were judicial missions the fact is that even if you go past the forfeiture issue they're not traditional admissions because we're talking about matters of opinion not fact the  approach this appropriately by considering everything that was before her at the time when she did consider the post trial motion but you know all of this really just ignores the standard of review that we're here to apply the standard of review requires  to view the evidence in the light most favorable to the prevailing part in this case and you know mr osmond's argument i was standing completely disregards all of the evidence that was favorable to this verdict you know when you look at the questions of was the suspicious for chest pain was this chest pain suspicious of cardiac origin where you're presented with a thirty four year old man wright the expert said he had never seen a presentation you know not times you  known have one hundred percent blockage in one artery ninety nine percent or seventy five percent of third in their entire careers no act none the experts at the trial had ever seen an extraordinary presentation in the thirty four year old to even suspect that a thirty four year old have coronary disease he was a very active man he was holding down three jobs very physically active jobs you know as one expert explained he was giving himself a stress test almost every day he had no history of heart pain he had no symptoms of in china you know that all the experts agree that in china is a combination of chest maybe stardom radiating pain into the arms neck or jaw and when mr hall presented he had none of those symptoms he had upper left chest pain he said he had arm cramping and neck cramping prior and some other point in time but he wasn't presenting with those symptoms at the time so again that indication of cardiac origin first of all the question of what you mean your significance of the protocols was was also a matter of medical expert test so the doctors and this is a it's a national standard practice and see to that if these are centers that's the issue that we always want to first determine what type of pain we have and if we determine cardiac in origin we make a referral to the emergency so the experts across the board rock clear that that was the standard here and they were evaluating the doctor used when presented with symptoms and decide what type of immediate care mr home might need that those are be presented to us missions when i think your argument is that those with the very factors a doctor was using to determine what type of care this patient would need that's exactly right i mean when someone you know that's the other the answer my question the first one is the question of what the protocols provides a better of expert opinion how you interpret them what you take them to me but the experts also explain that when someone comes in complaining of some symptom or pain or whatever you have to assess what it is i mean you can't just say i mean mr as we gave the example of a man who walks in with a fork sticking out of his chest well you know that's fairly obvious but this is a gentleman who came in who had been working all day moving heavy metal objects you know i think  the the results of it or the oh well that again the testimony was unequivocally clear on the defense side that this was not suspicious at all of cardiac origin that it was a perfectly normal e k g you know there's two different things that happened with but the point is is those have to be interpreted the e k g machines are apparently programmed with a computer algorithm that if they see any deviation from what is considered to be ideal they kick out a report that says something is ever normal but that those two physicians made it very clear that no under the circumstances they thought that dr jim hall of red e k g appropriately and that there was no indication of any fact there's even one point in the evidence where you'll see that the k g says there's  you know mr ozment would be up here telling you you've got to give the evidence in the light most favorable to me and that supported my verdict so you know i just i do think that you can fairly find that this whole argument about judicial admissions for it is i do to the verdict there's ample evidence to support it this is not a manifest weight problem this is not a channel the case you know mr azman has not argued any of the trial here issues that he raised i don't know if the would like me to address a few of those or not unless i'm going to get a server apply your relative well i have no rights facing your counsel it's it's your you know i try our best i guess all i would say to you at this point is that  every one of the trial here issues that were raised all of course trigger a question of the trial judge's discretion i don't think that you could fairly argue that each single one of those rulings the judge fully made that enough that that you could look at that and say that no judge would have a rule this way i don't think you can ever meet that standard on and you have a cross the board you know i think it's amusing that you know what the they argue in their brief that the locality rule that the judge found wasn't peaching they didn't include in the record the deposition that they're relying upon for the impeachment and it was the judge looked at three pages of deposition testimony and found it wasn't impeaching so now we've got kind of a consistent problem here with starting with this the patient to follow up with his primary care physician after he left they said that was ok now they're complaining that that was air you know and that's it page eleven seventy four and then later on in the trial mr  into what counsel said which is not true this isn't a national standard this is a standard of care particularly for the o s f scope of services which is why when the experts were allowed to say well i wouldn't be suspicious to the whites of the jury that it's came up i don't think that's despise it there are other things i'd like to address for your sense of judicial admissions being discussed with the judge judges at forty five to forty six forty seven fifty two it's all throughout that what's very important  meeting he was suspicious he admitted it there it is tend to care says admission equals referral i don't think everything outside of that is a distraction i don't think it changes anything that they went on to put other evidence in if in fact the evidence under the law of and the the fact that they took the cagey and decided he was going to ignore it because they're not always right and the other bullish things he said about why he didn't just send him down the hallway he went beyond his capacity and the standard of care has to be right in light of that that they didn't want exactly this they didn't even want to be there but they show up anyway the arguments before th court i do believe strongly on j o b but i realize that relief is his very scarce i think it's a matter of record that manifest way here we have a doctor who suspicious he makes you suspicious senator kerry says suspicion equals referral he didn't do that because the case involved his life and the wife and the two little children are involved in this case need this case