the complication that mark wilson sustained was a psychotic nerve injury or foot drop which is also result in burning tamely and that had to be disclosed and dr shafer agreed that it was his duty to disclose and he said he would have about the fact that mark penn the foot drop on the surgery again is not in dispute he had it in the hospital immediately afterwards he said it ever since there was a dispute as to whether he was told but the trial court judge ford said that you know that created an been slows the plaintiff would not have had the surgery again mark wilson was adamant on that fact the defense the court should use a singe same germ say that case one hundred eighty three that says that you have to have just objective yes pain is objectively says it's difficulty doing things and it should have been reference i think that it was also objective that there were he could do everything some of it took a little longer he was going to gold's gym three days week to work out the pain was year before you've said you're too young to have the surgery at this point is fifty two that's when he went into the physical therapy with him too but dr shafer says all of those were options from our inductor shaper shaver testifies that the only option was surgery because the alternative would have been he would have been bedridden and unable to walk and we pointed out the reply brief the page they cite to a doctor shapers testimony is where i ask him well if he went study something like that it's understandable why well that can be a much warmer but surgeries don't fall in a category most people make bold actions and the testimony of them cheaper than the plaintiffs expert in this case is that some people decide to have it some people don't say  haven't we pointed out shaper says that people who don't have it or not it reasonable the ones who play dr smith said it's an option that a reasonable person could select but he goes right on the next question which is cited in your briefs and said i have some people to lay decide not to have it down for says he has some people who never have it depends on how bad it progresses and that's why the failure to inform in this instance falls more with korea and i suggest korea was this what has been follow basically ever since it came out which is informed consent possibly causation is different than the typical medical negligence cases oriel describes in the usual has a typical bit of you know a lot of medical negligence cases it's fair to take the test better to tell means the person did not perceive a reasonable person a prudent person would proceed as tauriel says nobody's in a better position to determine that the new jersey don't need an expert in fact i would suggest that doctors are the ones who are qualified to say how reasonable patients work it's the twelve members of the community who say under all the circumstances really hear the testimony it would be a reasonable person would head it or no reasonable person would look at it when they hear the plaintiffs reasons for not his like forty pages his written or his oral discussions longer than everybody's argument he starts off by talking about how mark said he didn't know there was a risk of a lot of blood loss associated with it he says but there's a consent choose not to go forward and it's not unreasonable he thinks of those people said evidence of the coin would not of had surgery had been one just because the doctor test alters he's not happy that's evidence i think of how reasonable person could act in the mission now is to mark himself mark said i could do everything it took a little longer i slept without pain some nice some nights ahead  right the evidence could be if he was in the same jimmy situation where there was no alternative and he was almost comic toes or whatever you got to take it out but i mean he had he h thank you my name is craig on wrath of represent dr shafer at the outset i think it's important to point out that plane of sex for testified that he was incapable of identifying the specific mechanism that caused mr wilson's nerve injury he could not rule out the possibility that his nerve injury was caused by at a general anesthesia no but he found that very unlike way down low on based on speculation that's right in the record no wilson admitted that the anesthesiologist informed him of a risk of paralysis so he knew prior surgery that this was a known risk and he decided to go through with the surgery anyway and he end this as it turns out the injury he suffered may very well have been caused by the anesthesiologists conduct so right off the bat we have a plaintiff here who's claiming that dr shafer should be held liable for failing to inform him of a known risk of or known complication of the surgery when in fact he already had knowledge but what concern about is is this thing that i'm getting operated on for that's what i'm focusing on yeah you know that be reasonable for a person to do i think that it would be reasonable that any any person hearing that an you're on a jury do you remember specifically getting that risk explained by insee theology i didn't have a drill but i do specifically remember in running down a list of awful things that were going to happen starting with death of which you made in you ignored it because you already knew you were going to get the surgery oh absolutely in the search and end of it and i accepted that risk  wilson had in mind a surgeon he wanted to perform this surgery but he was booked solid he didn't want to wait he needed that surgery now medical records show that he was he was struggling with the pain we don't even need to get to this point end of the the trial courts or ruling which goes on at length listing all the objective evidence i think that that's very persuasive but i think that the fact that he knew not of just some general issue of death but he knew specifically from the anesthesiologist that he had a risk of paralysis that that risk manifested itself in this case and it may very well have been know of the risk and since agreed to to go ahead with the surgery and in this case the patient did his expert it mid the patient did the patient himself it made it that he knew that this was a risk and that risk manifested itself plaintiff is incapable of a stablish in the element of proximate cause because he admits he was informed in advance of surgery that the injury ultimately suffered was a known complication opposing counsel suggested well this gives everybody a free ride you know and as the c e o just stood you sign a consent form with him you're just opening the door to everything that's really up case there are thousands of different complications some of them are very standard some of them are very specific nobody advised me of paralysis when i was having  and the experts don't agree but this is a lead us to meet of a lay person being told that you have a risk of a specific risk of paralysis would mean to a  layperson that you were going to lose the capability of moving one or more of your limbs that's what it would mean to me i think that would mean it i think anyone on the street would agree with that it's not a whether you need expert evidence to prove your case and st joe says you do choreo says you don't know that that conflict has no relevance to good any reasonable juror is going to know that all the action which are going to say the same thing what they're going to say is this begin to say in the beginning your fear of surgery is going to outweigh your pain but in a degenerative situation they will find a need and a hip or lower back so it's going to get worse and worse and worse and at some point the pain will outweigh your fear and you're going to have that operation and that's what the experts said both of them said in this case yes there could be some people that will just never do it they're just never going to have surgery because are that afraid that be pretty rare in a case like this but they were also be agreed that the condition would continue to generate the pain would increase it would only get worse it would never get better and that ultimately he would have a sedentary lifestyle no he says will sudden lifestyle maybe that's not so bad maybe this is like retirement no sudden terry means you can't walk some terry means you're a wheelchair sudden terry means that you are you are already experiencing pain when you sit when you stand when you climb stairs when you get into a car when you do anything only that pain is going to keep getting worse and worse and worse and dr shafer even pointed that out he says at a certain point in the his words were i believe your hip blows out never  bother to explain that but i think that's a pretty stripped of word it's what that happens there at that point some sooner or later that surgery was going to happen and in this case wilson definitely wanted it sooner paralysis was not what complication and fully advised that he went into this with his eyes wide open he knew that he might lose the loss of one of his limbs for one or more of  that's what happened and there is no way that anyone can ever say that this was stopped or shaffer's fault or the anesthesiologist there is no way you can say to a medical degree of medical certainty one way or the other this ma very well been the result of up a dural we'll never know and if you send this back to the trial court you're going to be asking them to speculate on that point but getting back to st german koryo all they do have a conflict as to whether expert evidence is involve but there is one single point that they are fully agreed upon and that's really in both sites the cobb case from california that says that we must use an objective standard  this is normally a question for the jury the trial court looked at this and said no the evidence is is it's just far too strong it is there is no evidence in this case other than his subjective statement that i would not have had t what type of evidence would have been what community sample what i was going to do or you could have said gee i'm really thinking about putting this off till next year but the doctor convinced me to do it now something like that but that's he did just the opposite he said forget my normal doctor forget my doctor choice i've got to get this no even his own experts said he was struggling he was in pain he needed the surgery now again and this is something i have to reinforce repeatedly i don't think we even get to this issue because he was informed of the complication he walked into the surgery or better get wheeled into the surgery with full knowledge that paralysis was a known morning i am serious and i represent christie clinic and know that the argument has been presented on both sides i do have just a couple points i would like to add mr wilson testified that he recalled a discussion sign the consent form so he recalls being told that there might be something related to anastasia that could cause proust this and that was either july twenty second or august eleventh that was his testimony that was seven days  but it's highly unlikely but we inform you of these and what does the ordinary patient the reasonable person do they really take into account that there is this much chance that something bad might happen particularly after they've already had warnings from it warnings only signed in law school they had warnings when they talked to the doctor they had warnings when they talked to physicians assistant they're getting a warning on the morning of the surgery however long before the surgery is going to occur maybe you start thinking well i know a lot of stairs that's pretty good maybe i need to wait till my pain levels are eight and maybe will stay there until i die of a heart attack by years later think that's all you would need i think you need that information like i'm still doing ok yeah yeah i know i hate this painters over there i brothers i'm told i'm going to have a floppy delay and i'm not going to be able to go to gold's gym or the more even if my back that part of my pain is gone i'm going to really think about maybe it's better to wait until the pain gets more serious and he was informed he says he knows before before the surgery and even says it's as of august eleventh the other thing that we have in this case is the effect of evidence of the plaintiff's own expert who says that most people he tell the same patients this suppressed and most people say yes when dr shafer was asked about in mr wilson's condition he had severe arthritis mister dr smith said that most patients in mr wilson circumstances proceed with the surgery and he would have recommended surgery if mr wilson had presented to him plaintiff's own expert dr shafer when he was asked sad most majority of the patients say yes so it's a matter of whether fit the risk a reasonable person would proceed with the surgery so we have objective evidence which is sane gem and choreo sites to st jam that you need to have objective evidence i mean it's right there in the cobb case so we have objective evidence throughout this record we have we have evidence that he knew of the risk well before the surgery he doesn't remember exactly who told him but he knew of the risk it was before the surgery doc july august eleventh and we also have this all of the subjective evidence not only from plaintiff's own expert dr shafer all of that evidence mr wilson's condition was such that surgery was appropriate now he could have le and here we have undisputed people have also rejected it based on where they're at and circumstance where the circumstances the epidural dr smith said it's very unlikely he said there's about seven or eight things that could have happened he wasn't ask paralysis counsel mr o'mara said well the list you know they talk about death think about it if they talk about death when you get the seizure for me no matter what you die from in the hospital you accept the risk of death you know so if they cut your recall i just they just said something could happen but you mention hitting something yes you recall what it was about hitting something it wasn't hitting something as my spinal cord what do you mean they just said that something whatever is going in a seizure something might happen i don't remember case as far as get it now the idea he had to have it dr pryce was booked up for months and he wanted to have the appointment and he did get the appointment but his testimony is when he went into the appointment he didn't know if he was or wasn't going to have the surgery that's why he wanted to talk to the doctor so i don't think it's equate when he says i don't wait four months to see a doctor i want to get an appointment with his partner who's available to see about this and talk about it that doesn't mean he was determined he was going to get it right away respect of the trial court i don't see a rematch drawn in this case as opposed to determining what he said about how he was disabled to some extent was objective but leaving out what he said about what he could still do and how