good morning your honors may please the court i appreciate this opportunity to talk about this case with you today this is my name's philip davidson i'm here and we have the minor plaintiff and her mother  this is a case involving a brachial plexus injury sustained it birth resulting in herb's palsy the minor child ariana blanche was born on september fourth two thousand and eight this appeal is from a district court decision granting summary judgment the district court found no question of fact existed as to whether blanche is claims or timely and i state claims because one aspect of our of our preferred is that be a cruel standard looks at separate claims that are distinct in time identity and in other aspects separately it fixes  against the non movement violation of well established principles of summary judgment the plaintiffs also respectfully smits that the complaint was filed within two years of the cruel based on  i would think that with a new case like this the most basic step to be taken is to figure out when the statue of limitations will run and not to be aggressive about it  suit was not filed until thirteen months after you had all of those records and that's why we're having this debate now that's why we're having this debate  honor but we need to look at the accrual standard and we need to apply the facts of the case and i think that the district court's finding that miss blanche had a subjective understanding without a reasonable person or position has on would have understood at the time of birth she consulted counsel within a couple of weeks ryan she did your honor and i'm glad you brought that up because i wanted to address that the case law is clear that it is what prompts plaintive to seek counsel that's relevant to a cruel standard and miss blanche went to see a lawyer in joliet who is not a specialist in medical malpractise within a week or two the meeting actually thought this case looked a lot like our take that he does i disagree i disagree that it does your honor because if the court applied the a cruel standard in our take the way that it should have in this case it would have find that it would have denied summary judgment because the court said by one year after the child was born you had done a lot of things you had retained a lawyer who had ordered medical records and it told you that the case was not meritorious but despite that you were still actively seeking referrals because you believed in your case second there was documented evidence you know early intervention social worker who had visited the house where the the mother and father had communicated that they felt that there should have been more monitoring and if there was more monitoring livery was too risky so they had a sensually it shown subjective knowledge at that point of their current contempt theory of liability now despite that the court said by one year out after all these things have happened now we will apply the ancillary principle of inquiry notice at this point we will it and so they didn't find that the defect that the circumstances of the birth caused the claim to accrue in fact the very same things that were known to the ark take those would have been known to miss blanche this single first time mother that it was a difficult delivery that you know the baby got stuck it was important to get it out of soon as possible and that the livery and the government and the district court excepted this argument said well if he apologized that's admission of fault while it was an admission of fault and it wouldn't be difficult for jury of twelve people tempa thighs with miss fact just because there is a bench trial separate and distinct claims should be analyzed separately in terms of fixing and cruel day they really didn't and there's two separate claims here there's a claim against dr march which is basically  using inappropriate maneuvers applying too much traction and against the prenatal care givers which is the failure to monitor the failure to correlate over a period of months clinical findings with ultrasound results and so you know i think that when you look at those separate and distinct in time identity in provider there's nothing about what occurred at the delivery that implicat me please the court counsel of the district court in this case probably held that the cause of action accrued in september two thousand and eight following the delivery is at that time when she was aware of the injury to her child and she had reason to consider that the injury may have had a doctor related cause the injury to the child's arm was apparent from birth and blanche testified that she understood that  very large eleven point seven pound child had sustained the injury to her arm as a result of a difficult birth where the large child become stuck in the birth canal for an extended period possibility was highlighted for points during the delivery process where she testified her doctor became very upset over the size of the baby and hollered out repeatedly who who is her doctor who  and then that was followed up by the doctor apologizing to blanche for the injury to her child and for how the child had been delivered so if there were any doubt as to whether blanche subjectively suspected or dr related cause it seemed to be resolved by the fact that within one or two weeks after the delivery she would see a lawyer for the purpose of filing a lawsuit to recover for child's injuries  really matter whether the boy was a specialist it really was that the lawyers important only because it demonstrates that this plant yourself had enough information to consider the fact that she had a potential legal cause yes i agree  necessarily an indicator of a doctor related injury i think it's one more fact to be put into the equation you know a doctor could be sympathetic it's point right absolutely but he said he was sorry for how the baby had been delivered well i see here the district court decision at page sixty six or page thirteen of the decision when i ask her what did you think he was upset about she said so here it is that page ten of the district court decision she testified that he told her he was sorry for the birth of her baby and how that she was delivered and the district court found it strongly suggests paid for one of seven that's what do you think well i can tell you to start with the latter question first just to go in order that our office disagrees with the wallace decision and so we think that that it just gets it wrong for how how this should work you know for the to start with the supreme court of the three you know one birth related injuries right so the supreme court in kubrick says that the cause of action accrues when the point of knows about the injury and has  counsel and you know she has two years in which to consult counsel and you know and get the investigation started you know it's not good to wait till the very last minute she can she has some some leeway  what happened here is the fact situation here is very different from was the wallace involved different kinds of claims against the prenatal care providers from those against the doctor who did the delivery against the prenatal care provider the claim they failed to appreciate high blood pressure clinic doctors both the prenatal doctor and the delivery doctor failed to appreciate the size of the baby so that a c section could have been performed so it's really the same claim against the clinic against all the clinic personnel and so i think that's distinguishable from wollaston is not necessarily a claim that's distinct in time employ so that it would require separate evaluation so that's so we don't think really wallace had to be applied here but of course the district court did apply wollaston treated it that way and you know i think the district court got it right if there's anybody that points had reason to suspect here it was the prenatal doctor because according to her the delivering doctor had gotten upset and was very upset with the prenatal doctor for not advising him of the size of the baby so that he could have perform time if you think that he was wanting to know who the prenatal doctor was and she said and this is it page one seventeen line fifteen you know why didn't they didn't record this that this was going to be a large baby that he needs a c section i mean from my perception that's what i was thinking so that's what she said was going through her mind and i think clearly that means that it proves that time thank you so much time for two minutes take a decision the our take is consult a lawyer that was not what was what caused the claim to accrue in either why the plaintiffs were pursuing a case against a private private hospital institution that did not cause to claim to approve in that case what cost claim to accrue as one day ordered the medical records were not saying that the claim accrued one way or the medical records just when miss blanche saw a t v commercial in two thousand and nine that said that these injuries can be the result of malpractise that the other thing is when she went to see the lawyer she testified quote i want possibly to pursue a case against the hospital and if we take her words at face value she was not considering a claim against her prenatal care givers you know one interesting aspect of this case is that miss blanche was asked to  speculate in retrospect during the time of her deposition of what she was thinking during this tumultuous and difficult delivery to me it's a little bit unbelievable that she came up with the current theory of liability at the time for either and i the plaintiff is not held to the the level of a medical expert whether there should have been a continuum of care between her prenatal care and her delivery care is separate and apart from whether there was and dr comments are telling in this respect he yells out in the middle of delivery who was her doctor he had no idea who or doctor was there was no continuum of care where at a different location the clinic  garner a whole bunch of information if that was enough to cause the claimant to accrue for her doesn't that suggest that she was on inquiry notice at least some time before she knew that she knew about the herbs palsy she knew that it was the result of the birth and reasonable repeal can disagree on this but i think at this point that her suspicion was reasonable was sufficiently aroused and she did in fact inquire further she call