and thirteen the delivery occurred at anonymous hospital in lake county indiana and p w is now almost seven years old with severe deficits in his left arm this appeal is taken from an order from the district court northern district of indiana hammond division granting summary judgment finding no question of fact as to the timeliness of the plaintiff's claims we submit to this court that the lower court improperly resolved i es and conflicts in the evidence in favor of usa and against the appellant's here and we asked that the district court's ruling be reversed as there are issues of material fact present  we have four aspects to our argument today your honor and i have seven minutes to argue this and so i would like to start with if the court doesn't mind the tolling argument can i start with that  wish it sounds like that hamilton has the questions you know i the the the briefing in this case concentrates a great deal on the confusion in your difficulty in finding out about dr ramsey status i understand that but i want to make sure that i understand that if the we're talking about a birth injury here and if we're looking at a cruel the the mother our case law on birth injuries has been is focused an awful lot on when people saw boyer's and has not suggested that blames the crew immediately upon birth i gre honor and in fact the blanche case which is most similar to our case even that case focused heavily on the mother meeting with a lawyer one to two weeks after the birth of the child and the holding a mat case was that the claims of crude sometime in september the holding was not that the claims accrued and the date of the delivery and so i do agree with your honor that the cases do not generally find that a cruel begins on the status that is the standard also in that also in the r t a case they did talk about that there needs to be some knowledge that the defendant cause the injury and that the injury wasn't just from natural causes and so i think that is an important aspect as well in this case unlike in arroyo and some of the other cases miss woodson in her affidavit described the delivery is very traumatic and she testified that her son got stuck and the doctor had to yank out with great force and then shortly after wards noticed that there her arm she ws arm was sagging down why wouldn't those facts which are uncontested prompt a person to do a deeper inquiry to something was wrong here well your honor i guess the answer would be that sometimes deliveries are traumatic and it doesn't necessarily mean that a doctor caused it or that there was no practice remember this is a st time mother with no college no medical training a woman who lived with her mother in their mother's house had menial jobs but it was or is not just there has never been an addict delivery in particular the fact that she noticed shortly afterwards p arms tagging down if she herself said she knew something was wrong how do you get around that i guess your honor the fact that sometimes i guess the answer would be we can have a situation where a doctor delivers a baby and there's an injury that doesn't necessarily mean there's no practice i mean if every birth injury would be malpractise i think our courts would be flooded with cases i think the important thing here is that after he followed up with dr ramsey he followed up at subsequent visits his arm still wasn't getting better at that point she said oh guys this is going to be something i need to take care of she goes and gets the records looks looked into it finds a lawyer finds my office and then we took the case from there i don't think she knew right away and she could have been expected to know that the doctor committed malpractise upon her which causes enduring she doesn't have to know committed no practice the question is does she think the doctor caused it as opposed to rio everybody and we've said repeatedly that you know there are bad outcomes and in medicine and that doesn't mean it's malpractise or even put you on notice take a look at the numbers case for example where there was a traumatic birth and we clearly didn't say that that was when and that was enough to have to put the  plaintiffs on notice but i ask you a quick question about the westfall act issue mr sin of all yes and the government has suggested that you should have used a provision under indiana statute  for yes your honor this specific reason is that we were told by the in the end apartment insurance on multiple occasions that dr randy was a qualified for either in indiana when you have a qualified provider  pursue the panel for us first yes your honor but in this case there wasn't any uncertainty we were told that he took from the department of insurance that he was qualified but yes there is a provision that allows plaintiffs counsel to double file the case now that the method of doing it isn't favored by the or it hasn't been adopted at by the appellate courts in indiana and in fact we know about cases where attorneys have done that something went wrong somehow the the provider was identified and the the attorney face sanctions because of that and there's a filing fee involved there's a lot more involved than just filing it  you know that the doctor might possibly have caused it and what my opponent has focused on is the question of well was it now practice and that's not what the question is the question is was the delivery itself was was that possibly what caused the problem with my child the plaintiff knew that she was expected to have a syrian section and she did not have a sincere exception the plaintiff knew that the delivery was very difficult the plaintiff knew that it was dramatic and the plaintiff knew that immediately after the surgery d her or her child's arm hung down in a way that was not normal those are all plaintiffs descriptions of the injury and i think that this case is there for similar to blanche and similar to arteta and similar it's a good name and even in the case this court made a distinction between errors that might be based on prenatal injuries and injuries that are caused wasn't something that was iatrogenic it was caused by a failure to administer antibiotics but even in that case the district court which was affirmed by the court of appeals did not find that the  ran on a date that the person consulted the lawyer that it ran on the date when the person had a reason to suspect that the failure to administer antibiotics might have caused the injury and in fact the court there said here that that date was child wasn't given antibiotics you may you may want to talk to a lawyer didn't wait all the way until the day the lawyer d was actually consulted and they didn't to reiterate the delay here and the reason this case was not filed on time really has nothing to do with the fact that ms woodson waited a few months to consult a lawyer i think what my opponent has pointed out is well she waited to see if the injury might get better court in good hands says you don't have to understand the full extent of your injuries it may be reasonable for somebody to say look i know that this was traumatic i suspect that there was a problem here but if it all resolved itself i'm not going to go and see shortly after to know you know i don't i mean she had are she talks with a lawyer within a week or two in the blanched case with a week or two after the birth there's language in the opinion that certainly supports you i'm not sure how consistent that is with sekou brick or with members our case where where we made judges to brooks opinion for the court made clear that a traumatic birth was not enough to start the clock  just child who was turned out to be badly injured or rather later it was a medical report that we said might well have the one that raised the possibility of a doctor cause that st might i don't know that the court ever has had to swear him decide this question i do believe that there d is language in a number of opinions that does say in these herbs palsy cases which is really what many of these trigger the knowledge i think for those of us who read a lot of these cases in these these unfortunate and usually avoidable injuries we know that the question is does a reasonable patient know that particularly if we see decision i think all of this court's decisions as well suggest that the triggering event is at what point should a person reasonably investigate and that date really should not be the do it with their lawyer that isn't  that isn't the day that matters i think look if plaintiff had come back and had said look here's here's what the medical records show here's the triggering event and a lawyer is necessary to interpret that i think that advised the mother to see a lawyer right yes and we don't have anything like that here presumably there was something like that something prompted we don't know exactly what prompted the mother here to go look for a lawyer and see mr  while yes your honor your might this is this is what i would this is the best i can do to answer your question your honor the i think that what the case to say is that the general presumption is that you know of any injury and when it occur and that's not a medical malpractise principle that's a tor principle and essentially the burden is on the plaintiff to show that this no this is the triggering event later d on that caused this to occur and in many cases such as arroy said ok the triggering event is the birth d of the nd child where the triggering event is the need to connect up with some other person who triggers in your brain that you know that something happened here but the triggering event is not i know that have that event occur and i'm now meeting with the lawyer d and the burden is on the plaintiff and we are lacking that here learned to not put any medical evidence in the medical records or make an explanation as to why some of that occurred between the bir when we know that she knew it was traumatic when we know that she knew she didn't get the c section she was promised when we know that her child's arms hanging to him and then we have a completely absent record and tell she shows up in the lawyers office and the burden is on her at the summary judgment stage to establish a trigger event and the only triggering events she has offered are the visit to the lawyers office which i think is inconsistent with this court's precedents for a date even later than that and so for those reasons that's all i can and in blanched that say in a court that the doctor is not required to explain how you sue him him or her in court and and the especially the due diligence principle that this court established that the that it is the requirement of plaintiff's counsel to inquire into determine whether or not this particular d health clinic is federally qualified and if any of that has been done here your sure is in the database  employer well employees themselves individual doctors are not in the database overview of the of the database but what that and more sure was in the database the investigation involves and the complaint even alleges  these proceedings in state court and i realize that there are many reasons filing fees the potential if one dollar makes them the state and file something not under seal etc why my why one might choose not to do that but there are also reasons a health care provider in indiana qualified as they did here for dr ramsey this goes to our equitable towing and argument and i think it's clear that in this case we meaning myself and my client were justified in relying on the in the end the partner of insurance to tell us that he was a qualified provider normally what happens in indiana if there is some mistake regarding this qualification the health care provider himself will get in touch and and make the error go away they'll provide documents about employment and that sort of thing that's why i think the equitable stoffel agreement also  pervasive persuasive in this case because dr ramsey didn't do any of that the last thing your honor is that north shore is not a defendant in this case plaintiffs and their counsel looked into the actions by north shore and chose not to name that entity all these other cases i believe each one of them that were cited today certainly the blanched case involved a clinic that was also a defendant in the case ours didn't have that we had dr ramsey in the hospital that's it nothing told us that dr ramsey was an employee of the government is i see that my time was up your honor lives as quickly or there are other theories for  what's the basis for holding the hospital responsible for dr ramsey's actions here under apparent agency or honor and we do all right here your honor the case is still pending against the hospital before the indiana department surance our theory against the hospital is not only the nurse's malpractise but also under apparent agency for dr ramsey thanks and so that that is still pending but we do want to we do want to have the opportunity to go