problem we had was with the trial court's granting summary judgment in favor of the doctor and denying a summary judgment against the doctor and the reason was because we didn't have an expert who could testify on either causation or the standard of care if we believed that we did have such an expert being our treating physician next statement because i think in the historical sense of our village he could come out and say look this doctor did in fact fall below the standard of care in areas seated over there in the deposition room those magic words are developed by experts and expert witnesses testify over many many years in cases we have a difference in situation here with the treating physician being used as an expert and i believe that's where the fork in the road begins how thing of what standard are we going to apply in terms of magic words to a treat physician expert and are we going to require all of those formal things and overlook the substance of his testimony which was his to jimmy history as one has to be with the whole record in mind especially for purposes of summary judgment where so much hinges on my clients not being able to get a trial judgment we're not here to try a case on the records and on the medical records and with magic words we're here to see if there should be a trial and if you look at the testimony of the original doctor he didn't   at trial we may win this case if the jury believes the second doctor who is also to have verified or or sworn medical history and that's just not what happens in a surgical theater the best we could do was attach those documents to the records and attach them also to get positions and have them come in that way but there's as i'm arguing to you today i'm arguing in fargo based on the history and based on what the doctor said about it none of this is been tested by a trial for instance my record in the history shows my client was employed as a small business and had a tattoo parlor when he went to the hospital after his operation he's going to record shows he's done employ even in the in the context of the medical records it shows there's mention in there of him being unemployed and homeless one can see in a period of two weeks of his life  in the record to allow us to go forward we have a jury could have found for us on the issue of pressure causing a leakage causing infection  n our extra pages forty nine fifty one jury could have found for us on the use of the histories part of the standard here and how that all talkers read the history it's no dispute there but how our expert would have applied the matters that were any history significant significantly different from the matters of the first position with thought it was important he didn't think it first realization didn't think it was important enough to drink and didn't think that alcohol use i v use or so have the tightest basically if you can a large for fairly routine non dangerous procedure the putting in a drain and the the burden of proof that the thing to contest in cases of professional liability are to prove fight medical expert testimony a breach of the standard of practice and the fact that the breach of the standard practice was respect to the placement of the line asked me to do i think plaintiff concedes that there isn't any expert testimony from dr leon indicating that the defendant breached the retained and resides perhaps somewhere else or whether the expert is one of the patients treat his visions professionals are judged by their peers and the standard of practice ethical both is the standard in this case applicable to a board certified general surgeon to meet the burden of plaintiffs must offer expert testimony not that something may have been a mistake for or that that a surgeon should have some concerns when making clinical judgments but there has been a breach of the standard of practice there simply has been no testable and i don't think it was we had previously that this is not a foreign body situation that the doctor shanklin intentionally placed the feeding tube and it was designed to remain in the position that it was through the stomach and into the small bowel and the test done excused medical center both before and after the surgery with the subsequent surgery and indicated that the tube remained in the precise after sometime after dr shank of surgery so this is not a situation in which the only reasonable explanation for the plaintiff for those reasons for the failure on both issues to offer testimony that there was a breach of the standard and the failure is to find both issues that there's any relationship between the  under state law once children are removed from the family of the state needs to do one of three things within three days they need to file a petition in the court seeking three thousand custody of the children