talk we waste three major issues in this appeal all of which were ignored by the defendant the first issue we raised was dr tires admission that he was evidence that there is zero liability because in every day parlance responsibility for any injury means answerable liable and accountable  addressed that issue in history the defendant disregarded and but the disregarding it is the has the effect of filing no brief with all the only argument that the defense raised in regard to dr tartars if mission was to contend that it wasn't a judicial admission well as we all know a judicial admission is a separate entity because that has the effect of giving me the right for summary and preventing the defendant from presenting any evidence and actually i think it's a judicial admission as well but this court doesn't have to find them if this court find there was all sorts of other evidence saying he blacked out or whatever and but nevertheless the fact that there was that one little snippet i fell sleep that was in evidentiary admission which required reversal of s statement by under his party so let me ask you this you say that you don't say he was responsible and that is that statement he did say that but is he legally responsible is there a difference in medical negligence cases the legal system adopts the medical standards of care i e they say you know we as judges and and  as lawyers aren't competent to say what doctors can or cannot do you know we don't know what their standards of care are doctors do and that's why in this specific instance of  situation where you're talking about what a doctor does yes he can receive admit responsibility for an injury so basically you believe he was saying i deviated from the standard of care yes because the common responsible i did the same thing like if somebody says i ran a red light that's admitting responsibility for the injury the second major issue because issue for informed consent and that is whether a doctor has the responsibility to care if truthful answers to a patient's questions about his experience in performing procedure again this issue is ignored by the defendant all here argues is that a doctor has no duty to volunteer his lack of experience but that's not why plaintiff is resting their case on  resting their case on that when he was called by the doctors nursing do you want to have a robot do this surgery on you ah and then the plaintiff asked the nurse who was speaking for the doctor  doctor have experience doing this procedure and the nurse said yes that's a whole different issue we as patients have the right to decide whether or not we want to be guinea pig pavlovitch testified that a doctor has an obligation to disclose his lack of experience if asked the tenth circuit court of appeals where reaches three hours of proficiency in doing this robotic procedure and then i presented some wonderful second door terry sources in my brief about i told go run d c and my family protections we put in place on average these cases go with less well with a novice than with someone experience it happens and that was plaintiff's choice not to be a good pick he didn't want to be third issue which defended ignores the standard of care by which doctors titers conduct it is to be judge with regard to their life the procedure is a by a rookie standing who is it by a reasonably well qualified he did but he also was impeached no no no question he pined that there was a deviation from the standard of care in turn in his report improper positioning or padding or both and the length of amnesties the dr pavlovitch said that in his report the result of a double crush injury was not within standards of care that's in his well as the fact that this particular injury you know it was a medium nerve injury as opposed to a peripheral nerve injury that bad only happened to one out of every two hundred case more words i think that that is that is correct he did say that but he also said that that this that the value procedure goes the more likely that peripheral injuries he contradicted himself you mean you are correct he said that but he also said the operation went too long he said that the bad with regular period of time positioning injuries are well known fact and the supreme court battle in vs router said even if a expert contradicts himself a summary judgment cannot be awarded it's still a question of fa and i want to tell you if you look at the facts of the gatlin versus ritter case the contradictory testimony by the expert in that case was unbelievable but the clerk said he could cannot  that is true but what he said is what he said it is and i think you made a wonderful analogy yes you can follow a recipe but that doesn't necessarily mean you're going to make a good cake after all that  or not because of the obviously the preexisting condition may have helped but that would not have occurred had it not had it not been for the surgery and and the length of the surgery increases the risk factor new meister talked about the fact that there is an enclosed envelope and the the length of time for fluids going in throughout the provide evidence that a better result would have been obtained again with regard to the issue for c ability it's only the general  nature of the harm not the specifics i mean in martial versus that's the supreme court case where a car went through a brick wall into  case and that said once once a surgery is extended beyond what's reasonable the particular injury he may not be foreseen so yes there was a pundit evidence that summary judgment you can't amend your complaint bot you don't need to have undisputed evidence to amend a complaint that's not part of the criteria with regard to sin offered only at the time of hearing with plaintiff having no chance to respond in a recent case decided by and i'm not sure why it says fourth district because it looks like it's a fifth district panel but pontiac national bank that imo should be granted a reason for denying the motion so for those reasons i would request that this court reversed the i want a summary judgment and remain and actually  pretty rare to find anyone much less of a physician willing to express with such candor i'm in charge this is a i'm the one that's in charge of the operation and the  i think it's refreshing but frankly and i think that it's unlikely that he will ever do it again unfortunately here's the problem with that entire argument question is this did he know did he understand what problem finally went to a doctor knew meister he couldn't figure it out for months after surgery dr meister performed a surgery on his arms and that's when he finally found out what was causing mr bolton symptoms so the way the reason the doctor tartars so called admission is irrelevant is these proceedings is that he had no idea what he was talking about he had no idea what was the cause of the injury he had no way of knowing if it was some mistake he had made or if it was some congenital defect or what all he was doing was making a general expression that i'm the possibility that he was accepting responsibility for conduct that he gauged then i think the jury may have a jury question in this case he had no idea well of course supposed to be looking this is his clue as to how this happened i don't see how it's relevant i don't see how it's a relevant at all i think the question this case is so whether a surgeon who fully it here to the standard of care in every respect can nevertheless we found liable for an extraordinarily rare complication of one that even plate of sex pretty good was on forseeable though it's essential to understand at the very outset that this complication could have occurred even if the open procedure had been used the doctor knew meister he testified that compression injury can occur in any surgery lasting over two hours we've disagreed with that says he said no it's not two hours any surgery over thirty minutes thirty minutes thirty minutes to ninety minutes is sufficient to create a compression injury in surgery think about what that means first of all it means that the decision to do this surgery robotically was not because this could have happened open method surgery takes three hours of it could have easily have occurred there surgery he said that among the most experienced service the kind that do two hundred robotic procedures every year because they can do this in an hour or two well that's sufficient time to have a compression injury among said look this is such an extraordinarily rare complication he said i can't tell you how much the risk increases if any the longer this surgery takes place and he gave an example he  let's say that there's a risk of one tenth of one percent that was the that was his example he said you multiply that risk by five times and he goes and still all you have is one half of one percent he says it's still this is an extraordinarily rare complication no standard of care and they must show that dr tarter failed satisfy that standard so look at the allegations of the complaint where did dr target go wrong they allege that he improperly positioned the pla own expert dr pao which testified that he did not deviate from the standard of care in that respect and this is where the comment about the good cape bad cape example came up he said you can do everything properly and follow all the rules sometimes you'll have a break sometimes you'll have a bad case of what he's saying is that this type of injury this extraordinary really rare injury complication can occur even when you you have no problem with the point of law makes you're just saying that it's distinguishable from what happened here yes yes in the i think in the end we come to one final conclusion after dr  within the standard of care and agreed that yes it was and at that point we look at a situation where how can we possibly hold a physician liable where players own spoke with him she flat out said she was i did not lie and when they asked her about the details of the conversation like the plaintiffs themselves and she was not very her recollection was not very clear the plaintiffs were unable to provide very many details at all what she did say is all she could say was if i was asked this i i would have answered it in that fashion but she was adamant about one point she said i did not lie and never would now the informed consent issue comes down to two points there is a duty to to disclose material risks and if you're going to successfully pursue this claim must the plaintiff was injured by the proposed treatment and that's where falls apart that's all we have there is no evidence no evidence whatsoever that the patient complication in support of that she cites the colonial in the motor lodge versus gave a case that i was marginally involved with myself many many years ago if you look at that ruling they talking about duty the foreseeability element of duty that we're not talking about pretty proximate cause side effect the court lays it out it says when you're talking about forsee ability in the context of proximate cause to then you do look to the particular injury and how whether that particular injuries was forseeable we have what cases said else that it's colonial in motor lodge versus gate and and i'm confident the court will see that that case does not stand for the proposition asserted to sum up your honor i believe that dr tarter performed the surgery competently and within the standard of care and that's not just my opinion it's the morning your honor i'm here on today today i may have to st john's hospital i just have a few points that i'd like to address first as the courts where st john's hospital motion for summary judgment was orally made adopted the argument of our codefendant as it would have by st john's hospital specifically the foreseeability of this particular injury as a proximate cause yet for those arguments counsel had ample  in that case however it does not stand for the proposition of law that counsel has indicate that proposition that she refers to is a defendant on trial in their opinion that this court should not have allowed that due to lack of notice however that was not an issue on appeal the plaintiffs had not actually raised that issue during he'll actual kill was with respect to  co counsel did an excellent job of explaining the difference between the legal foreseeability proximate cause for city and we're not referring to the foreseeability element active duty for the nurses in this particular case that is not before the court today that was not raised in the trial or what we raised in the trial court was that the actual injury that judgment the standard in first springfield bank interest first counted in case the injury must be the type of injury that a reasonable person would see as a lightly result of his or her conduct and there is no evidence in the trial  that the conduct of the nursing staff war would create or if they would a reasonable person would see as a result for the injury to mr ball the receiver would be a result of the nurses conduct and he said that at the time he said that in his deposition in his deposition he never gave any explanation or i didn't know the cause of that injury so that's why that's the reason why i made that that mission he did say that in that for the injury and that that was the fact so this is not refreshing it clearly is in evidence three issue and the court on summary judgment cannot wait the evidence regardless of whether he knew the cause or not that goes to the weight of the admission certainly if you look at this the fourth district's case evans versus brown about the i fell asleep again that was just such a minute we were common but nevertheless the fort pierce trick said hey that's an evidentiary admission there's all kinds of things that he blacked out etc but it's eleven a tree admission it i think you can't get any more specific than i am responsible for the injury i am the captain of the ship that is very specific and that is robel the admission of responsibility roe versus  also i cited the supreme court case from the internal revenue to involving the internal revenue department where hintersteiner i go towards indicating the opinion about which said i said that dr tiger at one point he said that it was the length of surgery person sceptical for a first case that's not the standard that this court should be reviewing it's the standard of a reasonably well qualified surgeon not someone doing a rookie procedure and then at another point in his deposition d know i'd have to go back and look at that case it may it may but when you get down to it trying to distinguish proximate cause versus studi versus versus the surgery took too long s hundred pages twenty eight to twenty nine c four hundred of the record pages twenty eight twenty nine where he says cause of the injury was a very long by any standard surgical case and have side down position with an tarter had done with open prostectomy it's so those were two cases where he said it took too long another case where he said where he said is that we will not allow a surgery to go beyond five hours that is the absolute limit and he said that that pa