subsequently attempted to get that stone our use the basket the basket became in traffic they had to cut the equipment apart leave that in her for several weeks she had a lot of complications and ultimately died several months later this is in the institutional negligence case this is not a responded superior or case we do not allege that if particular nurse did anything wrong per se it's not like a nurse improperly placed an i am or did something that deviated from the nursing standard here we allege institutional the institution and be negligent above and beyond what a particular physician would be found negligent for that the hospital has a duty in this particular case we presented expert testimony we also allege that the hospital had deviated from its policies and procedures by failing to obtaining for consent a so at the trial level the defense made a motion for summary judgment at various matters in support of it and you responded to the motion for summary judgment and presented material to the court on why the bush should not be granted yes it's my understanding correct that part of the at the trial level players dr copeland two six twenty two reporters well well one of the aspects of affidavits and support over in opposition to motions for summary judgment as the supreme court more specifically in the rubber duke case of medical malpractise case which a firm decision from this court the supreme court said strict compliance with rule one hundred one is required here and there are no written  against both men want to get the other defendant as well as an affidavit that was submitted and as i recall i don't have that affidavit in the materials here but i believe it was  there is no requirement for an expert report in a claim based on institutional negligence now it's the one anyone who is a general require been throughout the law of the state of illinois posed by the supreme court concerning affidavit submitted in support of or in opposition to motions for summary judgment that's what we have in this case it doesn't mean difference whether it's institutional mental could well practice or direct medical malpractise makes no difference is mere effect it could be any kind of action if it's a one ninety one any affidavit this is what's required for to be considered at all to the best of my belief and knowledge as i stand here today i believe there was an affidavit that we submitted by doctor copeland betty incorporated that if  affidavit and the allegations in the complaint and they can be tied up in the appendix it had page seventy eight and seventy nine we go through that what basically are the allegations in the complaint and i see a paragraph twenty eight count five that is where the plaintiff alleges that the hospital deviated by allowing electoral hydraulic missing here well and that they cite the general concept that and in the standard consent form you can do whatever else you'd like if we deem it necessary and we use the  hypothetical that if a patient went in with a hangnail and then or a ponytail infection and that but the patient asleep and then the doctor decided to give me the amputation equipment i'm covered under the general consent form that i can determine that i need amputate this patient's book now that would of course be a hypothetical that is no relevance to them probably but to the standard of care right well we would say no you cannot do that you could not o several of the experts said shell should not have been used at all it was r k and it was not the standard of care there are there are several physicians some of the actual treating physicians here and other experts that were retained they said should have been used at all should should be used hold me i'm lazy or the more up to date procedure should stop not done anything that is of course an issue of fact as to whether or not there was a blockage whether there was an emergency our people say there was no emergency they went out the stone got stuck they on stuck the stone there was no blockage at that point and then they said give me the e h l o equipment and we're going to break this thing up that's when we allege they should've said time out we don't wants to come under well they have an independent duty to supervise and monitor and their own policy says they they have to have any form consent and they've got informed consent policy and their own polic says they have to do that you can't be doing procedures on patients that don't have not consented and match where the hospital's duty was to say time out doctor we do not have consent to use l so i know you want to use it but nobody has informed the patient that we're going to do this it has a higher risk it has the highest risk of complications we think that i'm not and i'm saying that the hospital spa see they should have followed their own policy and should not have proceeded by giving a piece of equipment allowing a piece of equipment to be used that had never b our expert said that each else should not have been used there their experts say it was ok to do that ok that's where we get into a battle of experts but that's an issue of fact and we've sight that this was going to be a typical battle of the experts are saying no you should do that even the treating physician say that i want to just briefly touch on this for c ability   that the pushy ability issue was a problem against the physician the the court found that for c ability and as a matter of law the foreseeability as a matter of law there was one step removed from the hospital but it was too far fetched we don't think that's the case we don't think that it has to be forseeable bit every complication it would be for have thirteen allegations of negligence here as to which was written in the brief twenty minutes i can spend my time going through those thirteen allegations  at the time that we were making the argument the issue of their least test my recollection the issue of using the  that the deposition to have been taken of dr cole that's what got mentioned in the summary judgment materials rather than just the two six point two and cited much more extensively both before the trial court them to this court that the deposition probably for that reason yes i think what we did essentially at the deposition at least in my view was we went through his opinions and found out which ones had no basis and which there were several and essentially took in our best attempt to take apart  that time there was an affidavit they got submitted but i i because it involved back to lying i frankly i i would be the first to confess my recollection on that topic is weak well i think that questions from the bench have suggested the idea that if you take the position of the point that you do have in real time the necessity to have a board member or some decision  officer constantly monitoring the activities of the physician i don't think that's probably what has ever been stated by any court in the state and i don't think it's good public policy i don't think the route that any of the decisions and from the courts of the state has gone now having said that do we understand that there's darling do we understand that there are those issues yes that is missing but not with the court has already alluded to is what is this case is this case a situation where we had a consent and there was an emergency that  that's what this case is all about this case is not about that original consent by signed by katie s e the original who she got informed consent discussion  grant that but that's not an issue of institutional negligence which is all that plaintiff has indicated that they wish to pursue as the court probably read in the brief in the response has been we switch to talking all the institutional negligence aspect of this case the reality is that both as a matter of public policy and also in terms of the cases it was not given to a board member was not given to the officer of advocate who was given to this was issued to be able to act as he saw fat associated with this situation now  cognizant based on his training background skills there are brief references in the complaint to the fact that he was not qualified the only only evidence in the record before this  the lack of training etc so in terms of that issue i would just suggest to the court that the institutional negligence issue is  different standard that we recognize in illinois but it is one which cannot has played if wishes to hurt go back to issues associated with elected doctor language then really the situation that was set out was that there was an ability to obtain those who was ordinary but the whole issue here is that it was never anticipate available so and that wasn't done in this case and why wasn't it done in this case because it was an emergency there was no intensive patient this was going to be i would like to briefly address the issue of proximate cause because i do think it has a role play in this plaintiff has tended to focus on the fact that well how can i advocate get proc a finding that there's no proximate cause from the court a recognition or there should be a recognition on the part of the hospital that there's going to be a need for this kind of intervention which basically means that the hospital has to sit in its judgment and make a determination as follow possible adverse outcomes and we're not talking about wild ones we're not talking about cutting off those things of this nature because we all know that if you pick an extreme enough example you can prove most anything we're talking about a normal day today live out her ration and in this case i think it's fairly clear that there's no way that the hospital can reasonably hope to have in vision this scenario and therefore somehow made a plan for that it just is not likely and that is the call of the trial or i have gone through on the thirteen instances because frankly it was only way i knew to approach the issue given i had to penetrate to this court why i felt that it was a case of summary judgment was proper i think that the well number one of the state them in her affidavit which she said and secondly if you're not going to take that position then yes you are probably not going to have an adequate opportunity to that can be submitted to show that there is a genuine issue of material fact i wanted to clear out to make sure the bed to court was clear dr copeland we did submit two certificate of merit to six  twenty two certificate of merit the five copeland the first one did not include any allegations against rome in the second one yet so want to clarify that did show was dr copeland had a opinion that was directly contrary to her nurse point or her own and there was some discussion as to whether or not we needed a nurse or a doctor we again don't believe under the law in illinois did she need a nurse because this was institutional negligence we don't think he even needed an expert because of the allegations deviations from state law on the policies of their own policies we think that in of itself would have been enough to go forward with an institutional negligence claim but we did have dr copeland