know moved to our fourth case this morning which is mad or says the department of veterans affairs standard as well the clear facts also indicate that there was instances like i mentioned earlier where the v a hospitals expert had testified that there were violations of the standard of care that doesn't matter if the dr schwartz as resume and there was also instances where the court found that dr hussein's credibility was lacking based off of cross examination questions and not based off of actual facts that were mol obvious that mr manning didn't have tb however he was isolated for five days which is again beyond the seventy two hour standard that was required that tb isolation in itself cause mr manning to have  concrete lay harmed him i really would like to understand well here's how it it concrete really harmed him mr madams history indicated that he had zero pedia as well as some heart issues if you had been placed in a cardiac intensive unit sorry true your honor but but the telemetry and and an alarm didn't go off when he collapsed in this chair but again because of the fact that he was in that unit as opposed to a cardiac intensive personnel to catch to his room and begin the efforts to recess at recess and take him that wasn't the issue it was probably within minutes however the right personnel wasn't there that that's the issue the right personnel wasn't there secondly the family after the two years pulled him from life support any live an additional two years without a two weeks without life support all that shows that mr manning would have survived this if he had the right personnel chose a different route of or in a different position would still be alive today i'd just like to do a study hall lapsed between the first effort to ensure pay as you're mad and the successful effort to intimidate him on the second try no and that's a key point appellant repeatedly states that it's undisputed that it took twenty five minutes to enter bait mr madden dr hussein conceded numerous times on cross and redirect that the records just don't make clear how long it took to intimate mr madden what we know is that it took twenty five minutes there's a twenty five minute code blue and there was twenty five minutes to obtain appalls the doctor who same testified that it could have been as little as testified that that is a perfectly appropriate person to perform an intimation in a code blue dr schwartz also testified that the standard of care doesn't require you to jump to a tracheotomy before you get tempted into beating a person twice particularly a person such as mr madden who has who is very large and had very few physical landmarks that would allow you to safely perform a tracheotomy in an emergency situation like a code blue you look you know i don't know that the actual technical names of the landmarks but you have to look physically on someone's neck and then palpitate with your hands to figure out where to make the incision and m references to the fact that during a routine physical exams they were really able to to assess his his neck very well because it was swollen and because he was large and so she said oh you know hundreds of he weighed a little bit less than four hundred pounds so what the parties agree on is that when he was admitted to the hospital on december twenty eighth two thousand and seven he weighed a believe three hundred ninety three pounds five foot six and he information that he gathered from family members and had attached eighty eight pages of a two thousand page medical record to his opinion so it's not just a mismatch in terms of qualifications yes i basically we're three with that that you know what i would add to the list of deficiencies that you just restated is that you know dr hussein's test that he was mistaken and inaccurate in here about so many of the medical records and he was confronted with specific medical records over and over again and on cross examination and over and over again he testified that he was mistaken or he hadn't reviewed the records or he wasn't aware of them and i think that really rightly so played a big part in the court's credibility determination which you know after all is how much weight should he get one expert versus another and dr hussein really was not able to substantiate his opinions at all and then conceded that many of his opinions were mistaken and i would also like to clarify and i think this comes through from our briefs but dr schwartz did not agree with dr hussein's opinions on the key breaches of standard of care that that's not accurate see could you please talk about the question of whether mr madden spent three and a half days or three days versus five days in respiratory isolation case it did not have a big impact on the case you know our position which was based on dr schwartz his testimony was that the tb isolation in her words it was a distractor you know she testified that look you would have received the same level of care irrespective of whether or not he was in isolation or not i think you know it's difficult to there was confusion during trial about how many days mr nat and was in isolation what we know is that it looks like he was started out in isolation and late in the evening at the earliest of december twenty eighth and we know that he was still in isolation late in the evening or early morning of january first so that's about four days when the plaintiff argued that this was relevant because he should only have been in t v isolation for seventy two hours dr hussein opined that it was a breach of the standard of care to have kept him in isolation for more than seventy two hours dr swartz testified that she didn't think it was a breach of the standard of care in any event there was no evidence at all that mr madden was harmed by the fact that he was in t v isolation just as there was no evidence at all that mr madams harmed by the fact that he was on the telemetry floor instead of in the coronary care unit in fact you know dr hussein testified at one point i don't think there was any delay in care for mr man and so you know the issue of whether he should have been in the c c u or whether he should have been in isolation is really a nonstarter there there was no injury there there is no evidence at all that there was any delay i'd like to address two issues that are two alleged breaches of the standard of care that have come up over and over again both at trial and in the appellants brief the first is whether it was appropriate to keep mr madden sitting in a wheelchair there's again there's no evidence that sitting in a wheelchair injured mr madden and i'd also like to point out that also the records show that mr mann and wasn't exclusively in his wheelchair during his entire second hospital stay there are references to the fact that he was sitting up in bed sometimes he was sleeping sometimes he could move around the reason mr madden was allowed to sit in his wheelchair and it appears for extended periods of time and obviously sleep in his wheelchair because that's where he was when there was a code blue was because that's how he could breathe he found that to be more comfortable he had to and dr schwartz testified that when you have a patient exhibiting the symptoms that mr  ch of the intubation on the floor as i would like to reiterate there is no evidence that it took a full twenty five minutes to into bait mr matt and also it opinion was that it might even have been easier to work on the floor because it provided a firm surface when you're doing chest compressions on somebody of mr madden size in a code blue and as common sense would tell us when mr madden was found unresponsive in his wheelchair it was made more sense to lower him to the floor rather than try to get you know eight people or however many people it would have taken to lift d seems like a common sense perspective that she said look you don't really have any alternative you want to get to work on him as fast as you can so you move them onto the floor and you get to work and you into made a mistake as you can unless  i'd like to address the first thing about dr hussein being invasive and non responsive to some of the questions and most of the evasive or non responsive answers were based off cross examination questions that were presented by the u s return why and that make it a law makes a difference because a lot of the u s attorney's cross examination questions are hypothetical such as this hank i could just mentioned earlier why does that make it i'll tell you why because when she asked him what you pressed dr hussein about well it wasn't twenty five minutes into baden it could have been you know three minutes that that's that's based off the medical record the medical record said twenty five minutes to properly into debate and to get a pulse from the doctor firm of mr mann and the question was presented if i remember correctly as to well it could have been less than twenty five minutes and at that point dr hussein based off the medical records yeah i guess it could have been based off you know  way it was written the u s attorney never presented any witnesses to contradict the medical record that in present anyone from the v a hospital that was there at the code blue to tactfully testify how long it took them to bake mr mann viewed as being invasive he was being invasive off a hypothetical question not an actual direct question that that's that's only for the first for the the hypothetical question now number two the other issue and i think miss hancock hit upon this obesity was the main problem here that mr manning was obese patient because the hospital treated him differently because of the fact that he was obese rather than getting him the proper bedding they allowed him to transfer him self in and out of it wheelchair back to the side of a bad back to a wheelchair it would have been proper and necessarily agreed with the facts that the standard of care is were violated but you did agree with that these standard that these issues occur such as the fact that he was going to a wheelchair and that being in a wheelchair for such a stand period of time would cause severe stress on a person and his lower extremities especially a person of mr manic size so there was ample evidence even with dr being deemed to be not credible there was ample evidence that showed