decision making process today but the supply side to say that it didn't go well she was worse off for years after the procedure and still is much worse off it was intended to relieve some pain and enable her to maintain an active lifestyle and the record evidence showed that it didn't work out that way be an issue a procedure that took place the hardware that was  was put in motion and that didn't wasn't successful never healed and she had to have a subsequent surgery six or eight months later to install a rd set of recent lawyer that was working on the case basically had a conflict and withdrew and my client wished to get it counsel this was on the eve of trial in september of two thousand and sixteen i was a friend of the plaintiff i mean acquaintance of her from our church and tried to get involved to help her get additional time to get to boy are we the judge that the judge gave about three months extension of the trial date and in that time we were unable to find other counsel and so i stepped in and handled the case but having said that my understanding is that this was filed once within the special with patients and then voluntarily acts which was secured by way of evidence right that's correct that's correct and you know that's really been one of the the four issues that we're dealing with here and it's not that there was a problem with the evidence deposition of the plaintiff's expert from our perspective he was likely going to testify very similar to that from from the one would hope one would hope and if he had he not you know the i'm sure the defense would have  involved so what what happened is that we expressed a desire to call him why the trial we indicated we're in conversations about calling him why the trial what was it about testimony of that had already been here by way as well as an expert named dr sherwin hope from the university of chicago and we simply believe that juries are going to pay i believe that there is going to pay better attention to an expert standing before them how is it that you are going to get past just this one plaintiff about the risks of this procedure how are we going to get past that well so so that testimony that we would have been the same either way and that really takes us to another of the four issues and that is the court granted  dollars mistakes we believe number one the defendants argued that we had to prove every element of an informed consent claim the expert testimony at and that is just incorrect as a matter testimony what he was asked is you know do you have any reason to believe that dr stephens been fact you know use words about conformed consent he said i wasn't there that was part of his answer was i was there he didn't purport to  pine that it was appropriate or not appropriate he said i can't speak to what was said between dr stephens and the plaintiff you know ten years well i wasn't there well there are depositions that experts can rely upon their medical records have back to rely upon there was his knowledge of the inherent risk in the procedure all of that can be used to form an opinion that the patient was not properly warm about the risks of the procedure that's where these cases are tracked expert comes in and says that informed consent was necessary to fight my opinion because of a b and c and the plaintiffs of what if i had known then i never would have undergone the procedure and then you get to the jury if you don't have the expert the object of testimony you ain't going anywhere well certainly your honor if if you have a clear record say where where the informed consent is laid out in the wet or right end and the expert looks at that letter and is is that if that was the informed consent is that sufficient then you would expect them to say that's not sufficient in order for a plaintiff to survive a motion like this the problem here is there was no documented down there and there was some letters but they didn't mention the risk of a non union which is the failure to heal they didn't mention the key risks that she about three things you know bleeding infection and a failure to heal but he didn't testify that there was the possibility of the wass of a medial hinge and there's no evidence from him either that he told her that well there's a risk that the part that's still hanging on or whole if she was never told that and what pickard your expert testified he had no reason to believe that stevens had that this was the material rest or you get past that because because what he anywhere well if you look at the choreo case which is the seminal case in the state it came out of the st district and the key quote from that is on page five hundred and fifty and it simply says it is a form consent action after they have been educated as to the information that the physician should have disclosed to the point of which is element one of a claim no one is in a better position than the jury to determine whether any alleged undisclosed information would have altered the plaintiff's decision and then we also the subjective standard is that of course every plaintiff's going to testify that i never would have undergone the procedure had i been told a beer seat i mean that that's why that war requires object that that i think that's correct your of testimony that a reasonably informed patient would not undergo the procedure because they didn't warn her about eighty year see and i think when you look into the record and you look at the whole testimony about what was provided you know she testifies that she was having trouble running she'd been active pro life run a while she was preparing for a half marathon or some other sort of race and started having paid that if she was forty this was supposedly a childhood injury and she went to a doctor and they said you can do this surgery should be able to resume and active lifestyle without pain after an appropriate time for healing and she talks about what her lifestyle initially talks about and there's plenty of evidence about the failed surgery the fact that it didn't heal it went on for six months before they finally had a subsequent procedure to fix it she still walks with a limp she still has but she had have resolved yes about and there's no question about it and i think that if you look at that evidence as a whole you could conclude that a reasonable person in her situation would never have agreed to undergo that that's entirely speculative a much you have evidence presented to the jury in the form of an expert witness who has an opinion that the right stuff wasn't disclosed testimony by the plaintiff or something in the medical records of proves that that information was not given to the fans so you're  point ends that we believe it's clear that you don't have to prove the expert testimony all the elements you know the nd point that we believe led to an unfair and prejudicial result at trial has to all i think it's you know both standard the supreme court has said you look at interpretations of supreme court rules is is it an overall standard so we believe that's the correct standard to apply here and if you look at the language that rule that says you can take an evidence deposition and use it have is it evidence deposition quote without prejudice close quote to calling that witness to any party on that witness live trial now here you have  know usual procedural posture in that the plaintiff's attorney took the evidence deposition you know a couple of weeks before the initial trial the schedule there was a substitution of counsel trial got postponed to january and subject to a judge saying what's there well tonight in your honor in our few applies in situations where there's a court order or at least an agreement of counsel there was no agreement here that that this hearing after they had filed their their petition and at that hearing in this is referred to this is in the you know page eleven of our reply brief but i can give you the record site but at that hearing the court said in this case if with  those motions pending before the hearing at a curing to decide those two motions our motion for a brief to call him why the trial and their motion for fees and costs if we did the court said in this case if you elect to proceed the defendants will get reimbursed for what they the defendant's counsel said mr kraus it just so i'm clear your order is your allowing live testimony if that's his decision you're also granting the petition the amount of which will be determined it goes on and the court says how about this before he hits the stand you pay them st ok so put it in the order monday the rd ok that's the date if we were going to call him why that he had to testify and defendants piped up and paid before dr vance hits the state that there's no written order there was no written order or as if with there was no written order for many of the motions eliminate we put those together months frankly after the trial and if you look at the record brief defendant's counsel initially agreed on an order which confirmed this and then when we got to the motion for a new trial and asked the court to enter it the court six months after the fact said wait a minute i never ruled on this and  is a way of avoiding having to directly address the point whether he flies in and testifies or you press play the video machine he's still going to say the same thing that he said before which is he had no reason to believe that stevens had that properly disclosed material rest well and so that may have affected if and i think that's why you wind up getting a directed verdict well with respect to one of the counts but dr bates testified in support of counts i understand one went to the jury and so the question is what is prejudice within you know within this supreme court rule and there's there's no cases that we can tell up on that have dealt with this precise issue it i for flying out for the evidence deposition then that's prejudice and it's directly contradict the plaintiff if the cited to you know secure the testimony by way of evidence depositions of the plaintiff didn't have to worry about scheduling and availability and stuff like that this is all you know a product of your predecessors decision making in this case which you are again haired wish we didn't hear it your honor but that there's nothing in the record other than the plaintiff initiated the evidence deposition about why they did it there's certainly tack using evidence that position was essentially the same as him here and there's you're right i think from from my experience at trial nothing ever comes out exactly the same i mean i understand that he would not have been permitted to testify about new topics but you know the questions i would have answered may have been worded differently his answers and badly would have been worded slightly differently they would have been on the same topics but they would have been there by the trial and i don't think it takes  you know i don't think we need you know a psychologist or someone to come in here explain that jurors often respond better to live witnesses than they do the play being pushed on a on a can on a on a on a screen even though screens are getting bigger and their witnesses testified live before the jury in fact at him during closing argument mr martin one of the defense lawyers said after this was an issue said dr vance is even from here he didn't even come here right he's an out of towner wouldn't even show up so they will pay directly to use this in closing argument because they believe it prejudiced or countered our arguments so you know this is a relatively straightforward rules issue what is without prejudice mean and i certainly don't think there's anything in that rule that enables the court to basically award sanctions if someone wants to cope with this why the trial after having done also had more definitive subsequent tests that ruled out neurosis sites while yes so there's there's no scientific evidence to a reasonable degree of medical certainty that she was ever diagnosed with this condition and the defendants were permitted to introduce evidence about the seriousness of that condition could that condition cause some of the same symptoms with this even lead result in death and the come in but dr campbell has evidence deposition is the person the way it came in and this was a question by defendants at the evidence deposition that says let's talk about another cause of her joint pain or perhaps another competent cause of her joint pain that you diagnosed and that is a neurological condition that was what was subsumed in the you know what that is right and he says yes to the nd part of the question do you know and what is that and then he goes on to say where it is he says well i'm not sure that we've documented and there are a watchful condition but she had positive serologic marred markers for having been infected with that or organism and as a result she was given a very specific treatment to arrest or prevent any progressive problems but we don't we didn't have any specific diagnosis of a neurological condition so that is how it it came in and they were able to argue that there's all these other conditions including this could be causing the pain well we know to a reasonable degree of medical certainty that neurosis if list could have been causing that because in the medical records which were not presented to the jury and in testimony that was not presented to the jury they said that was ruled out they started treatments based on the false positive they later will get out and we presented that nd argument to the court over and over again at least on two different occasions before trial as part of a motion limiting and the court simply said based on defendant's representations that she had been diagnosed with erosive flips i'm going to allow it to come in with a change of verbiage we think that's prejudicial i mean it's not really a forty three dollars issue it's a few process  i've got i've got one more issue your honor and it's yes it's a brief one but it's that the last issue has to do with the cross examination exhibits that we've found on the internet technique guides which are kind of like the owner's manual for the secondary hardware that that dr stevens used on the when the initial field surgery happened and this is part relatively failed as well it didn't alter that we heal which is why she because he was not only the defendant but he was an expert on his own behalf and he had said and that the technique guides he had said that the preponderance of evidence of the medical literature literature supported his what is called an oblique installation of this hard work and he indicated that and he also said that that technique guides were useful indications of how hardware should be used but it was up to the surgeon to make decisions and he had also said that there's nothing no medical literature that supports a parallel our expert said it should been installed parallel which is what the technique guides it he said there's nothing that supports that well we found the technique guides for these particular this particular hardware and it said that if it was to be installed  parallel and was not to be used for this type of they were printed after and there is there's this post occurrence literature point in these things but that really is like a subsequent remedial measure that's when the the standards change there's no indication that they use that the standards have changed for this and that's certainly something that we could've worked out with with dr stevens he could respond to that say well yeah back in the day it used to permit it now it's changing and doesn't if if he had said there's been a change in it or that this was  somehow different and new then there would have been no reason to it would have flown within that it should have been used but given that there had been no change it was appropriate this is cross examination they hadn't asked for it in the fourteen disclosures they had asked in their will to thirty seven disclosures right before trial so it came closer but but will two hundred and thirty seven the cometary says you can't use to thirty seven to get documents that you never asked it during discovery it's very very clear on that point and so for those reasons it was cross examination he should have been permitted we should have been permitted to ask him about it he was able to say i don't remember whether i use the technique guides and we were able to because we had nothing we were able to use those we had nothing to say on that point we previously he said he thought he review them and that they supported his is  so if you're trying to get any kind of documentation about something that was written after all the surgery happened i'm just saying how that works well i'm not sure it would have been you know it it but it we certainly should have been able to talk to him about it for purposes of it a test of his credibility that's what the case law says is that a watch is permissible for cross examination or you heard him say he read the literature on the st type of hinge but he did not on the nd the jury already heard the they did but what they did not even if you're talking about the literature that was available on the day of surgery he admitted he  yesterday but he also said that he'd read it before he just had it hadn't read it in preparation for this and then on your point about what else was said is that dr sherwin hope their expert as well as dr steven said you always plan he told me three things and then when they asked around cross examined is it possible you know are there other things you do remember him saying this you remember and she's like i don't remember beyond these three things right but she didn't say he she didn't remember what was told she says i remember him telling me three things and that's consistent with not being told about the loss of the medial hinge where the video portrays and he didn't claim that he told me that he said it it's usually his habit to go through the court knows is about two questions one is whether the district as he's made the circuit court properly granted the motion for directed verdict on the plaintiff's informed consent claim and nd whether the plaintiff is entitle to a new trial because of alleged trial or the circuit court's ruling should be affirmed in their entirety as for informed consent the fundamental problem here is that the plane to fail to produce evidence establishing a prima facia case and that relates to multiple elements required element case of informed consent certainly the panel has discussed a number of these issues but i'd like to run through them fairly quickly because i think it is crucial to understanding exactly why judge lyons ruled the way he did granting the directed verdict in this case the prima facia requirements for an informed consent claim are the physician has a duty to disclose risks failed to disclose or fail to adequately quickly disclose those risks the plaintiff needs to establish that as a direct and proximate result of the failure to disclose the patient consented to a treatment she otherwise would not have consented to and for the plaintiff needs to establish that she was injured by the proposed treatment a number of cases of this court precedent have been discussed today and they are important because they are consistent those decisions over time have explained this court's understanding of those prima facia requirements and this court's understanding based on the interplay between objective evidence expert evidence and subjective so your your colleague here leans pretty heavily on the choreo and why don't you tell us why you think he is misinterpreting material risks and the failure to disclose those material risks but corey all said is that it is necessary to have expert testimony explaining what are those required disclosures in this case we have evidence and we have testimony of record dr vance discussed required disclosures and dr stevens also discussed the disclosures that he made in this case now in korea all the discussion is about material risks and material is crucial time this court has used it repeatedly in cases discussing informed consent what is materiality if physicians should have informed the patient this is a quote from korea will quote prior to administering medical treatment of the diagnosis the general nature of the contemplated procedure the risks involved the prospects of success the prognosis if the procedure is not performed and alternative medical treatment an expert needs to establish what those requirements are but with your reality is not you need to walk through each and every single possible specific thing that could happen during the procedure that's a risk it's material risks again quote the general nature of the contemplated procedure indeed cobbs receipts grant the california case that my opposing counsel mentioned to the court earlier makes this even clearer and conses a case cited with approval by choreo the physician need not to live or a polysyllabic discourse on all possible complications a mini course in medical science is not required this discussion about medial hit and whether there needed to be a specific use  phrase fracture of the medial hinge relates directly to what carbs are says grams and what cory all said is not required as a disclosure there needs to be a disclosure of the general nature of the contemplated procedure establishes that that's exactly what dr stevens did dr stevens explained relevant treatment options pros and cons of the surgery putting in a bone graft in place to stabilize and how the bone will hopefully he'll over the the post operative treatment but dr stevens made clear he explains to a patient what the procedure involves in terms that a layperson could understand i'm not a physician if someone tried to explain to me well there's a possibility that the medial hinge fracture i probably won't know what that means unless i have it explained to me by an expert in detail i do however understand when a physician says to me dr stevens in this case the procedure we're discussing involves me fracturing your bone putting in plates and screws to put it back together inserting a bone graft and hoping that there is a real you know the b told that information it's absolutely correct that she says she recalls three things but then she says emphatically when she's asked dr stevens may have discussed other things with you but to be fair you just don't know right well i told you what i remember she's asked again well there may have been other things that dr stevens talked to you about that you do not recall in my correct answer i would assume so this isn't even a situation where the plaintiffs suggested it's absolutely that really it's to the disclosure of material risks a required element that relates to whether or not in the nd required element there is a failure to disclose risks here there is no failure to disclose those risks we have justice stevens who have doctors students testimony that he made the disclosure we have the plaintiff's testimony that she would assume he made other disclosures that she doesn't recall and just as lab and as you pointed out earlier we have no opinion from dr vance suggesting that the disclosure was an adequate and again this is where we come back to korea korea else says there needs to be a you need to conform to the professional standard of disclosure in order to satisfy that requirement but to establish what the professional standard of disclosure is you need an expert to testify what is that standard there's no testimony about that here so for starters we have four required elements of a prima facia case of informed consent and already there's no evidence supporting the nd requirement that there was an in adequate disclosure and judge lyons found specifically that  said there's no adequate there's no evidence in the record that supports that the disclosure here was inadequate on that basis alone directed verdict was proper but judge why is went beyond that the plaintiff was allowed to testify and the pla had the opportunity to submit evidence related to proximate cause there is not there is no evidence of proximate cause in this case there's been extensive discussion about the distinction that's referenced in all of these cases in korea all ins any otis in all informed consent cases that we've been able to review in illinois law about the requirements related to proximate cause and the plaintiff is certainly correct plaintiff counsel is correct when he states that it is should evidence proximate causes to be evaluated under an objective standard as opposed to a subjective standard for the exact reasons just eleven that you mentioned because presumably the plaintiff will testify that she never would have undergone the procedure but we don't even have that evidence in this case there's no nothing for the court to evaluate there's no subjective testimony from the plaintiff saying that she would have undergone the procedure had she been told of different potential complications we have no object of testimony anywhere that somehow someway there would have been a different decision made had the disclosure excuse me had the information given for informed consent been different and without any of that evidence there's nothing for the jury to evaluate under an objective standard without any evidence at all the plaintiffs can't satisfy that requirement and again judge lyons points to that specifically in his ruling granting directed verdict he explains there was no evidence that a reasonably prudent person could review in order to determine whether there is causation in this case so with that in mind judge lyons found on those two bases no evidence of any preacher of the duty no evidence of causation that the defendants were entitled to a directed verdict and that ruling should stand there's nothing different argued on appeal that would change that result moving to the  issue which concerns whether or not trial error necessitates a new trial in this case the answer to that is no as a preliminary matter plaintiff's counsel was talking about the court's decision related to not allowing dr affirmed there's no error here there's no abuse of discretion there is no information there's no argument about prejudice here if dr dances testimony would have been exactly as it was it's not an abuse of discretion to do just dismiss what you described as the fair thing and that's exactly what judge lines of trying to do here what's fair to the parties the parties were required to travel to california and take an evidence deposition that now isn't even going to be judge lyons instructed the parties that he would consider ordering reimbursement of some of their costs and fees if the plaintiffs elected to move forward of presenting dr vance laiva trial the circuit court also and stated on the record if that's what you wish to do plaintiff you may there will be no prohibition of you calling dr vance the trial but there may be some will lead rulings about fairness about you paying for essentially judge lyons did but judge lyons absolutely emphatically in his ruling on post trial motions reiterated and this is important it's a record one hundred and thirteen thousand one hundred and two suggest you were backed into a corner and had no choice i think is disingenuous i think that's an important distinction to say that the court didn't permit you to do it that's to call dr vance life without making payment back no one ever asked me how much i was going to approve in reimbursements there was never a ruling on that point there's nothing to be appealed here as for the two remaining issues raised they simply do not rise to the level of requiring a new trial all judges lines rulings were perspective on the directed verdict is whether there was evidence on both points one dollar and two dollars what that what the duty was and whether she was to disclose those things were disclose what she said and we go through eleven that dr stevens never told her there was a risk the needle he lost now so we do need an expert testimony to say that that was something that should have been disclosed well dr ho their own expert testified that the loss of the medial hinge and the risk of a non union were both significant risks that should have been disclosed the plaintiff now dr stephens the defended didn't disagree with that he said with that's on appendix two hundred and sixty eight dollars through two hundred and seventy one dollars so with respect to the nine union he claimed that it was his custom in practice to always tell the patient which suggested that he believes he did it here but but again he didn't states specifically that he recalled her being told that and none of the documentation covers either of these points and there's no evidence that documentation was given to the plaintiff in any event so i think you  really this really comes down to there is evidence it should have gone to the jury that these were significant risks that were not disclosed and that a reasonable juror could have found that that to be the case which is why it shouldn't have gone there so i think it really comes down to the legal question of disk or yelling the other cases require expert testimony with respect to each element including what whether what they were in fact told and  court's comments about how initially we were talking about scheduling this expert is live testimony and before the defense before we had filed a motion for a leave to do it and before defendants have filed a motion for a petition for fees dollars and that is when the court said you know the court is asking that reimbursement costs be paid before dr vance hits the stand a specific amount was discussed he said put it in the order we we did put it in the order defendant's initially agreed with that and then at argument a motion for a new trial six months later when the trial judge indicated that that he never ruled on this issue that's when the defendants went back on their agreement to have that order entry so we would have an order that would be more clear in this point but we do believe the transcript is clear when it comes down to it these are four issues that we believe at least the  made a very interesting and enjoyable arguments i would just indicated counsel though i would never take a case that somebody else started that is that i had that depend i the did it and it's tough it's tough because you take in what he did and you probably would not have done what he did period self i have to say to you if you did