because according to the lower court the plaintiff did not name the defendant should have been named in that count and the nd basis is from the lower granting the defendant summary judgment based on the plaintiff failing to present sufficient evidence of negligence direct negligence against the defendants first of all i want to clear up three dismissed full count one was a count of negligence against the defendant doctors for coast guard and sanders individually and as agents of morris hospital now a prior summary judgment motion the lower court found there was no agency between the defendant doctors and the hospital sole that claim was dismissed however how one continued as to the defendant doctors as far as negligence is just no it was no agency found between them in the hospital count two was negligence against the hospital three was a count for race a local the rd thing i want to hump an operating table where the patients then flipped over onto your stomach and for lack of better terminology her rear sight is up in the air so the doctors can perform this hour right search known as the prone position and that's face down and she's on this hump with her rear side up in the air so that the surgeon can operate now she has an endotracheal tube down her throat with tubes coming because someone is present in the operating room does not mean that they were negligent we are here to show did rearden have anything to do with her left arm was here possible cause of her injury and he was not now after the only thing that the defendants in apparently the lower court hung its head on is that a nurse bro zack was in the room also and we're going to talk about her testimony but i want you to become a record and the judge even admits that he did not sift through the records of find testimony concerning actual hands on the plane the shoulder of nurse reardon and we would argue ruling he notes that i want to talk about the position and now according to everyone's past the morning we laid it out and i know sometimes you know we have to go into the new shots terrifying and or whatever else but we have to do it in this case and that's what we put in our briefs and utmost importance of this patient can breathe especially when the flipping are over there would be no way for him the whole the head neck and endotracheal to be in her mouth and also touch her left shoulder it's physically impossible sand raise the issue that well the experts say that no all of them are part of the surgical team and they are responsible for her safety that's they've been indicates that each of these team members had a duty we agree with that they had a duty but in order for us to prove negligence we then have to prove breach of duty causation and damages and i don't think the defendants are creating a case or want to create case law that says that if a plaintiff in a medical malpractise case can prove that one person in the operating room was negligent than all the rest of them are liable and all of us will go down with the one part of the team member that was negligent that's not the case at all that's not the law in the state and we do not claim any kind of enterprise there either where one is negligent and they all as your honour's know the plaintiff must prove negligence or liability rather each person in that  and that's why we indicate that brozak nurse broza was only at the patient's feet at the time of this we're not a tribute in any kind of liability on her part when the patients being flipped over she's holding the feet we're nurse reardon is a necessary define in our party there's no evidence that he did anything to her left arm now the defendants will also hang their hat on statements made nurse rose and  indicates when asked about what she heard she says i do not even know who said it what shoulder they were talking about or who was doing what their she doesn't even know if you're talking about  lot or the writer and they were she's not even sure what they were referring to she just knows that she heard something possibly coming from anesthesia and the patients are being tight this statement  important as far as i knew him because this statement was supposedly made just that of the patient was flipped over onto our stomach and this gets in court this two time in this to the next issue about whether the plaintiff a prison and not evidence as and the other more successful nurses store and point her that actually had hands on her left arm and were the ones that couldn't possibly injure her left arm now with regards to rearden  and who's ever maintaining the legs wouldn't have contributed to the injury answer is i don't think they contributed to it so we're not placing any blame on them there's no indication that riordan had anything to do with her injuries  asked would you have the opinion that it's most likely that or about that time that the shoulder injury occurred there was an objection and then the witness answers i think it's more likely that it occurred in advance of the surgery with the patient being positioned before hand rather than after the surgeon the patient being returned to the transportation cart is also asked again on page tw are right he was in for the initial flipping over position of patients a fair statement yes question is it your opinion that most likely the injury to shield would have occurred during the initial flipping and positioning as opposed to after the surgery there's an objection on page two thousand and seventy five dr brand the plaintiff's expert surgeon indicates i think it's more likely than not that an injury would have occurred at the initial transfer from the transportation cart to the wilson friend so there's  in our brief and as point of conceded in his the relevant facts are not in dispute so what are those undisputed facts st sirin a weird was a part of what they define as the quote surgical team  to see our neighbor who was in the room for every part of the surgery in the placement of the patient into the surgical free through the entire surgery and cell while the patient was being removed from the surgical team and returned back to the gurney he was there for every single part of syria and had a hands on role in the care of this patient he had his hands on this patient the injury occurred on his own argument between eight thirty am which is right before the start of induction before the transfer to ten twenty am now they say the place of the injury is morris hospital well more specifically it's the operating room at morris hospital as well as counsel when you thought it wasn't a janitor who is ten rooms over it was he was in the operating the head he had his hands on his neck in earnest and her head and holding the taken to and then he would have been the anesthesiologist at the end of the procedure the anesthesia team member who would have assisted in transferring the patient sir surgical frame back onto the gurney dr sanders was not even in the room for that to happen he was also responsible during the entire time for the testimony of everyone undisputed to mid to be aware of whether the arm or arms had come loose and were flopping around which was one of the could potentially cause of the injury but his own neck experts have specified was the case and that would be part of his responsibility obviously my client dr sanders could not have carried out that responsibility when he was not in the room  exactly when the injury occurred they offered some possibilities abilities none of players experts could say exactly how the injury occurred he offered possibilities none of them identified a specific negligent act by anyone shoulder injury after surgery that's it is best as she could come up with she also said that the injury may have occurred when the during the time of the patient was being moved off the operating frame onto the gurney again when i was there and dr sanders was not she also volunteered when she was being asked that question that it may have occurred during surgery if the arm fell off the arm bore or if the bed was moved with the arm secured and of surgeon expert d knee written was part of the surgical team and thus responsible for preventing the very injury that we're talking about here so those are all facts that are not in dispute that is the actual undisputed testimony and factual information now i'd like to address the additional authority that was cited by the plaintiff very recently i would note we actually never received a defense never received notice of the motion but we did not want to challenge it because we didn't want to create a necessary procedural issue here and as there was in willis of testimony or witnesses being barred from testifying and the part of facts in this case are not in dispute as we've said this court need not sort out factual issues that the court will has had to do more weight expert testimony named they had an expert witness to testify against the c r in it so they actually included all of that because what was necessary as we know what the case law is they took a step to eliminate the possibility of a nonparty causing the injur that's what was done willis it was not done here willis the very case when you cited references the term exclusive control at paragraph thirty secs so what does exclusive control mean i have sized the cases including willis talk about the ability to establish the control element merely by showing the plaintiff was under the defendant's control during surgery and was unconscious that may be true but that does not establish exclusive control if alleging the injury occurred during surgery was sufficient th theoretically any one individual defendant could be named because they were part of the folks that were in control and they would have to defend themselves for the entirety of all the care that was provided even with all the other defendants all the other participants not be neat as actually happened here no that's not what the law requires the law requires that the plaintiff in order to the burden of proof must establish that the name defendants have exclusive control over the instrumentality that may have caused the injury you only plaintiff has not done that here and it's important in considering why the courts have chosen to set that standard what a race of the lower claim does it shift the burden of proof standard on its head and makes a defendant like my client dr stand his innocence and in fact prove his innocence in a situation where the injury may have occurred when he was not even in the operating room so in order to do that you have to establish that anybody who may have been involved was named as a defendant and it's the possibility that's the language limited the possibility that the injury was caused by someone other than anything defend so that language is critical to establishing exclusive control here and point if it's not done that all of the occurred now again it's not just morris hospital is the operating room so setting aside for a moment the inability point of to say how you know they didn't say the just about as to how the injury occurred let's look at the when the when which is that eight  was there for every moment and that my client dr sanders was not mr larson yes your honor may have two questions for you at the trial court in its order actually was the one who was at her a left side with her left arm when the turn was made is that correct or incorrect on the initial place the patient on to the frame that is correct so dr s anders once did in fact so the trial court had that wrong i'm not sure exactly the court phrase it at least as the initial placement yes dr sanders had read the arguments in the briefs and as i'm listening to you all argue this morning there seems to be a suggestion that there is no difference between the group that is responsible for her c and the group that is responsible for the injury is it your argument that those two concepts are the same well your honor i think where it comes in has that minus expert says that the the entire surgical team ha reiterate everything that mr larson has stated i think he is as clear by those issues well but there are a couple of points that i would like to clarify as i understand the plaintiff's argument this morning essentially the plaintiff is arguing apparent agents of the hospital mix that explicit state of apparent agency but then if you look at count two directed against morris hospital so there is no allegation that  agent of the hospital count three again makes no mention of a parent agency of anyone else with a hospital so to meet what this clarifies is that at the time of pleading the plaintiff understood the difference between alleging a parent agency purses d actual agency because the plane did that in the complaint and and that's that spelled out if you look at the difference between contractor whereas the other nurses were actual agents so this is something that the plant was aware of from our answers and erotic stories similarly dr sanders at his deposition he was asked whether c r a reardon was an employee of his corporation and he said that he was so the plaintiff was aware of the employment of c r and he rearden from at least both of those things and if you the that the plaintiff was making no allegation of negligence against the c r n a so the the idea now to be argued that it's in the complaint just doesn't make sense the only way proving any allegations against a c r nay would be by disclosing a c r an expert d under the standard from sullivan versus a and finally regarding the direct allegations of negligence against the registered nursing staff i would just like to say  the plaintiffs only disclose expert was nurse flanagan she testified about possibilities that may have occurred but admitted there's ringback no evidence that those possibilities occurred she even said herself i can only speculate about possible causes and obviously speculation thus there is no evidence of direct nursing negligence in this case and summary judgment on that count was appropriate again they indicate that riordan was part of the teen that he was present in the emergency or the operating room that he was hands out and these are all attempts to deflect the attention away from your was her have to maintain the airway and i want to again have a size that to do that you have to hold the patient's head underneath from you can read that in the testimony yet to hold the patient's head and neck and then you also have to hold this big and  wires coming out of it and then that she's being flipped over you've got a hole that's what doesn't come just lives and she loses her breathing capabilities and so one person has the whole that so there's no way for  testify that rare also help in moving her left arm that's another kind of red herring that the court should take a look at is when they say well sanders was out of the operating room after the riordan was in the operating room on the flip back to the car well you have to use your common sense and just logic when you look at best if riordan now is the only part of the maintain the endotracheal tube and the hat he couldn't delegate that to a nurse and say oh here you take your head in the trickle to that would be medical negligence in another itself and what's more important is that the previously described dr brand are all coincides now with regards to what plaintiff has to show they keep saying that you know we have to show exclusives control i would direct your honour's to come along record  supreme court recognizes that is not always necessary for the instrumentality have been in the exclusive control of the defendant at the relevant time so that would negate whatever they're saying that we have exclusive control we not only show all that the her she was holding the patient speak we're not assigning liability to rearden that's why we didn't get an expert because he was holding the head and maintaining the airway there's nothing to rebut that that is the evidence in this case it's all your time's up frames when this could have occurred dr brandegee narrows it down to the national flat they also indicated that the surgery caused it and there was no evidence that this plaintiff had any injuries before this the defendant subpoenaed ten years of records