doctors now that was deviation of the standard of care for that particular diagnosed that actor often testified they just see two five nine six of the record saying that they failed  immobilize the patient and that that was a deviation that was negligent treatment or the for the back but i contusion agree that from trauma this is a patient that came in from a traumatic fall treatment of that there is no dispute that there was treatment of that diagnosis the back but our contention is are they their treatment was negligence there aren't let me ask you this you know just to make it varies had that the only way you can get around the immunity is for negligent treatment of the guy who knows a step has been made what treatment that was given is also not i mean and that falls within treatment in this case once treatment was prescribe them began for this patient which there is no dispute that this patient was treated for the bakken but our intuition the failure to exams constitute treatment for the purposes of them unities the exams are having her set up having her stand up having her walk to the bathroom to give a urine sample but it's all negligent treatment according to  testimony was presented in the context of a failure to diagnose a spinal injury and that he testified basically that in light of the diagnosed now you've suggested this morning that the testimony is otherwise that both of the experts testified that the treatment that was provided was negligent in terms symptoms and signs dr upton said he didn't know how dr bishops could even begin to suggest the plaintiff's numbness was due to muscle spasm and he found it to be nonsense and he opined that this shot didn't do the appropriate screening evaluation to determine whether or not a spinal cord injury existed and she should have made this kind of testimony i think that that's a valid point then the treatment for the mistake knows this if it's if it's negligent that then they are they are liable there of course all the elements are a step but it seems to me that there's a big contest here between the parties whether the factors that you call those experts gave a pit in testimony that their treatment or the back spasm of spencer was negligent as opposed to the mistake gnosis and then treatment that was otherwise appropriate for the act was not appropriate for the spine and i think this the whole help here and  we know that she die she was diagnosed with that they were negligent in their treatment by failing to immobilize her stabilize her spine and also forcing her to stand up forcing her to set up her examinations having her walk to the and due to better negligent treatment she was unable to walk out she was taken out in a wheelchair had to be helped out of the end by her boyfriend and orderly from the hospital into their vehicle due to  treatment including further diagnostic exams including omissions of treatment and so it is not we're not gets an overly broad reading of cases they would say that if think you would have a point but if you have this that and then you have what is otherwise treatment that is not a deep patient from the standard here and patient has some other that i would say that's completely distinguishable from the case at hand we have a diagnosis in our claim is not that they treat don't be is that there is a mess diagnosis or they weren't treating our claim about their treatment of factoid and determined this was a mess diagnose case she wholly ignored the criticisms wholly ignored the evidence in this case that are playing our cause of action was for the need is for the negligent treatment of the still the doctors recognized in their visual diagnosis that there were her logical injuries simple respect for you know your honor baby you have a patient coming in with a back injury related to a dramatic fall the doctors and dr upton testified to that of the first thing you do you stabilize this patient you make sure the patients not moving around to and kate to protect the spine and the back so they failed to do that their treatment was negligent be provided her with pain medication and then subsequent examinations having her move around forcing her to stand up and dropping her that is all negligent treatment that's not what you should do to a patient who walks in with a testified at page c two six six zero through two six six one of the record that it was his custom in practice to do in your logic exam and document in our logic exam prior to just charging a patient and that he did not recall doing or logic exam of this patient prior to discharge and he did not recall and he did not in fact documented neurologic exam he clearly treated this patient different than other patients he would have and he admitted that it was his standard of care to do that yet he didn't do it with this patient furthermore others questions and there are questions a fact and furthermore diagnose or rule out and mergence the medical condition with this plaintiff the trial court's determination that the plaintiff did not have an emergency medical condition was unsupported by the r testified that there was no i didn't throughout this record that this plane after not having emergency medical condition the plaintiff obviously had an emergency medical condition for which she came to the emergency department of children for her condition fit squarely within both emtala and the co county's definition of an emergency medical condition she had severe pain and the absence of immediate medical attention placed her whole in serious jeopardy and at page seed two six six zero through two six six one actor bancroft testified that it was his custom and practice with patients such as best to do it was such as the plaintiff who had  logic exam prior to test charge he did not do that in this patient there is no documentation of it he had no recollection of it at a minimum that creates a question of fact other the patient was treated differently than questions i think i believe so yes and what do you base that on what he saw or your own interpretation or there wasn't any medical any other factor that said that this was different know physical injury as necessary for the plaintiff she may bring a negligent and did bring imagist negligent infliction of emotional distress claim for the injuries she suffered based upon the for the emotional distress she suffered as a result it's a separate cause of action and she has and she dropped the separate cause of action it's it's you know she it was a direct victim of this negligent treatment that caused her emotional distress so no expert testimony is doing yoga poses she was told you walked in here you can walk out when she was unable to she walked in there and do their negligent treatment of her she was left in a wheelchair this was a woman who what the doctors were rude to they were rudeness yes and that was satisfied here patient and i believe that will satisfy their ideation it's being told that they're lying and they're faking when they have actual injuries told to get out of here being forced to stand up and then drive this is  ground of safety activity earlier in the day or later in the day at another hospital that physician had called the doctors everybody  is there some duty of being ice his or duty to not be rude which is the duty there's a duty of care in the treatment of her you have was there some expert testimony that provides that you have to be tears take this patient seriously obviously you know if we do we really need a case that people should be based to each other it's like saying we need a case to find what is reason in the trial court and if there is a standard here that the bedside manner of the doctor is such and such then we need an expert to say that not having the upton and dr henri testified that there was that there for the failed total lack of taking this patient seriously and did it in coupled with their diagnosis of her of x for testimony saying that these are saying that their negligence treatment of this plane or not only the treatment that i previously discussed of forcing her to stand up dropping her but their negligent treatment and wholly taking her seriously and telling her that she was lying i don't think that is reasonable treatment of a patient and our experts both testified to that and i that's another story but the fact that the treatment consisted of i don't believe you and i'm just going to give you pain medication and goodbye when somebody can't walk well you're either of first i would say that  treatment that resulted from this this diagnosis or is it rather a case where the plaintiff has alleged a mistake else it actually her the experts that w that that's i mean i think that that's not the record you know and anytime someone has a fault they don't have to be mobilized you know those football players who get hurt on the field and they're not immobilized for you know hours at a time to scans showed that they were allowed a spinal cord injury and in this case i think what's what's relevant without going into what should have been done in terms of diagnosis i think we have to go back to michigan avenue and that analysis and show that what's  that standard of care would require that an m r i york now there's more to their testimony that they act but i don't know that any of the doctors ever said that i agree with you  talking about what's reported you know i got a cup of coffee together day in a coffee shop the person who gave me the coffee was not nice to me ok does that mean that i could sue the person i guess or the person because the person doesn't have a duty to be nice to me here in that case if she's saying it's a breach of standard of care that goes right back toward unity and if that is a standard of care by doctor which is why i don't think it's i don't think that's just what she was saying because what she was and i know that if you look at the complaint and archer thirteen e f three answers clearly sets forth the criticisms of the defendants in this case are for the negligent treatment of the plaintiff and further diagnose condition which  really because the diagnosis was wrong first and there seems to be no no rule anymore but i think could be michigan avenue a case where there is no treatment at all and the treatment that was where the diagnosis but they made in regards to the severe abdominal pain and spontaneous miscarriage that treatment did not cause harm that's the difference between michigan and now in our case that's the difference between the will if he's in our face and those cases the treatment that they render to the diagnosis made even though they had a mess diagnosis cause no harm and our case the treatment under to the diagnosis may cause heart dr upton at page  missed diagnosis was entirely improper no the treatment given for the diagnosis made was improper was improper the treatment given for the diagnosis of the back intrusion was welder the reason given for doing an x ray was trauma this is a woman with a traumatic fall with a back injury that they diagnosed and the treatment of the stack of their diagnosis was negligent and caused harm this woman walked into the their negligence treatment and setting her up standing or up having to move around and not immobilizing her son it iraq it cost this woman harm because smiling and it caused this woman harm they failed to s yes they have a back injury and then the record does not support that they rolled out neurologic injuries with the first council stated that they did a c t and x ray and that ruled out a spinal cord injury their own doctors and their own experts testi to impose a duty upon a defendant in the court in case the court looks a very various policy considerations such as the likelihood of harm the gravity of injury the burden of guarding against the injury and the relationship of the parties i think that we satisfy that we have a patient coming in an emergency department seeking treatment from these doctors in severe pain they begin treating her and they negligently treat her they the treatment they've  set a precedent that that a doctor can be sued because  the are she didn't sign the discharge papers because she was fighting to get care here her own very fine came and there was testimony from doug kaiser within the record that was cited within our brief that he was begging them to ski part that she clearly has got his gun where she can't stand h ride to her emotional distress severe emotional distress in this case they they did not go there negligent treatment caused this plane of harm it wasn't just because they be under treatment and chose to stop treatment but that they felt that was sufficient that is our position that they merge and see a medical screening was not done appropriately under their policies they don't have a diagnose nor ruled out an emergency medical condition so that distinguishes this case from the mccollum and and i do micro cases and in regards bangkok's testimony counsel said that it was in regard to question of the standard of care that he was asked in the record reflects that he was asked what it was his custom and practice up that was the standard of encompasses medical screening and his that he's doing engaged in the medical screening process to their diagnose or rule out emergency medical condition which he did not do he also tree of the patient differently as a part and as a part of the medical screening by not by not conducting a neurological exam nor recording documenting this for a logic or exam prior to its charge so he was not discussing the standard of