kim we schedule this case for half an hour and since the books have been here before you know we like to engage in chat and talk about the issues we're interested in all of these things so that we will be talking probably more than a half an hour but we do want to keep it within the testified at her deposition that if she had been offered a c section on november fifth she would have taken it in fact that's inaccurate because she was never asked after question i took that from dr burns deposition when he was asked that he was presented with that he said it and he said yes i know that but in fact it was not supported by mischance in this deposition testimony she did however testify that she thought she would be having a c section proximate cause and of course everybody knows it's cracks because it's typically a jury question and my position is that this is nothing out of the typical case it should have been it's every question as well there is absolutely no question in this case that there were  numerous numerous deviations from the standard of care that was never an issue in summary judgment and the primary overarching principle here is dr bird's testimony that every individual defendant had a duty to explain to shiftiness johnson what was going on and that because she had had two prior c sections she was at extremely high risk of having a ruptured uterus and a virus first breach you want to talk about is the duty to explain the high risks and that's the debt is the overarching deviation so what evidence was peer that the feel you are to explain the high risk pregnancy caused the injury to johnson no one of this and november fifth she should have known about it you know by the twenty fourth week of of she should've known about it early on and by the twenty fourth week of her pregnancy she should have been referred doctors who could manage a high risk pregnancy like this ok that could bring testified that had she been aware of the situation had all the risks of complications been explained to her one of three things should have happened had any of those three things happened the injury would have been averted number one she could been told that november fifth look at your you know you've got these these contractions you're having there are there regularly not consistently they're not every two minutes every five minutes but you're having them and they're not going away and the risk to you is not going into labor that's not the problem he if she had been told she was high risk she would have asked for a c section is yet she wished that she would have asked for it but the doctor would have explained the situation to her and said look at it you're high risk you're having contractions we could do a c section today because you're  home and she they would have the standard of care required her to understand that if the contractions continue she had to get her little butt back then it's not what happened though not until not until it was terrible the contractions there's no evidence actually th i don't have the actual record is itself so if you go to his deposition problems any contractions she should notify dr treat and all his partners and evaluate her appropriately every other day or maybe every thursday night every two weeks if she had it if dr treat had seen her and the fifty outcome would have been different one of them was also mine one of them was mining her every perhaps three days which we know would mean past the day of the rupture what evidence do you hear that any breach by any of these doctors  she would have been seen in the last four weeks by the hayes group those are doctors who were competent and able to the liver her child without it rupturing and they would have made arrangements for the management of the patient the doctors would have made arrangements for the manage c section then they would have said let's not go through this you know why why push it let's do what we can do it now she could have said yes you should have said if you want to do a v b act which is trying to have a vegetal delivery despite the fact that you've had two c sections already because you've had a failure if he had seen her examined her and and monitor her for three hours then he would have been within the standard curious and her home everything looked ok but we don't know if everything looked ok because there were those deviations it signal she had been ok it was within the standard of care if she if the proper monitoring had shown that she was fine then it would have been within the standard of care to send your home a you mean they explained to her look at your of the fact that she was very high risk and if she had any problems any contractions not any extreme contractions not regular contractions not painful contractions she should notify dr treat or one of his partners and a standard of care of course then would be to have her evaluated appropriately there is she there is no showing that her contractions ever stop that she had contractions on the fifth she had them on the six and then on the seventh that she got shot at home those which she said that presumably sure before that because she said i've had two other babies i know with contractions and this wasn't like that this was excruciating painful quiet ball it will be a horrific i believe those were not contractions that was the rupture she was she should have been home all the time without checking in and without somebody telling her that she should do something she shouldn't have been there she should have been at the hospital on the monitor at that point because the contractions never stopped and she was deprived of the opportunity of anything else except there's some controversy about whether they were able to do this fetal stimulation but it's as if he on that there she never went into active labor ever it was an act of labor at the house that was the picture so if she had page thirteen a supplemental record volume one c thirteen and if she had any problems any contractions and the contractions she was having contractions they never said to her look at you know you're a high risk close observation there were three things that could have been done and none of them were done and they deprived her of the opportunity to have a healthy baby baby was found in her hand to me it's ridiculous there's no reason for that even and even factor he did take the says if she had hours of contractions come back just if you're having contractions come back it was one of three choices they may have convinced her to have it and the fifth that would have been within the standard of care but he was he was brought he gave three choices would have been ok none of them happened nobody ever said to her look at buddy you know you're going to shoot you could have a big problem here because you're a great risk for uterine rupture you never exactly invent you never you can should have been treating her because she was at such high risk she should have been sent to the hayes group much earlier on but you know he said well i thought i was going to deliver the baby she knew that no she thought he was delivering her baby she told that to the people at st francis and she told them to to ingles when she came back on the twentieth i'm the seventh when she was in the registration for twenty minutes she said dr had babies didn't deliver my baby she was never told that this guy could do it dr kim was also a member of lincoln he worked very end he this was lincoln's own policy on policy not let this guy see people when their and their last month of pregnancy he wasn't capable of delivering the baby in and he really screwed up royally by not explaining to her what the situation was and what she had to know she was completely deprived of an opportunity so i think we could go round and round on this but i think i pretty much interviewed the best of my ability and it's page thirteen in my brief and and so the question becomes well what happens when there is a torrent of omission instead of commission and i think that's what you know what hung the judge up a lot because you could never say with absolute certainty what it would have happened had this  if she'd been given the information and in fact you know she was obviously when you read her deputy can tell she's graduated from high school but she's not dispense woman and she really was a very clear about much of her testimony and it would have taken a lot to explain to her the doctors had done so and so then they would have seen that they had to have some kind of intervention before the injury occurred if they put on a monitor they would have seen there was a problem he would have done a c section and first of all going back to the northward case before i get to that there's nothing in that nor your case that the expert couldn't say that for a fact because you never could say this is an act of omission that had they seen it and they done the feel monitoring at three thirty they would have seen the abnormal and they would have done the c section and timely fashion you could never say that you could say that's what should have been done not what would have been done because the in the resident there couldn't made a mistake could have not seen it could have said we have time and the thing could have happened and that's why i think it's most like our case in our case if if they had complied with the standard of care if she had been seen by doctors who were appropriate if she had been seen by the hayes group in her last month of pregnancy and they and they had complied with the standard of care they would have told know we got we got some choices here you know you're probably going to need a c section because we've had to before but if you want to try vbac we're going to monitor you very very closely and we can pick a way to do that you know we can either do that in the they never gave her that she was deprived if they had given her they at what why she was expecting the c section there was no reason to think she wouldn't of back there is no evidence that she would have come back the only evidence was that she didn't happen but sending her home i mean that seems to be the crux of this case that if they letters that go home that that was it they had a letter go home with full understanding of what the situation was and that he didn't just say oh you can send her home gaol nobody said that go home with the understanding that if they did the contractions were it would have stopped after forty five minutes only if they had if they had properly monitored her for three hours maybe they would have seen that the content contractions never stopped and if it happened then maybe it would have been ok to send her home but we don't have that because they only monitor her for forty five minutes and of the contractions were mild to moderate during that time they three hours like they should have in the in the contractions would have continued you know intermittently for those three hours would your opinion change and maybe he would have said yes i think so oh because but nobody asked that question so there's no  complaint was filed i believe on that took her fifteen can before anybody was served two and a half weeks later an amended complaint was filed it would have been a routine motion presumably if it had if it had been found in it just that i'm just saying that i'm not saying it for dismissing it indeed the most recent case it just it would be it would be wrong to dismiss a case in a situation like that where there's no complaint about it there's active participation for five years the cases they cite don't expired they filed a motion to dismiss and and that was that was that's the way to behave if that's you know that's the way to act if you're concerned about it and in this case there was never any complaint about it and the same thing goes back to kim statute of limitations defense he never praised an affirmative defense and statue of limitations so i i don't see how that would have been that's appropriate at this point now  cannot be way and maybe race for the first time on appeal and in fact kellyanne paving and stitch off this court's decisions say that very thing it is undisputed in this case and counsel just conceded that there was the record shows no leave of court good for the plaintiff to amend the complaint to add his defendants dr kim dr had vaguely lincoln medical center or st francis hospital in the two thousand and three action i became aware of that fact and in reviewing the record on appeal so for five years six years whatever everybody's just move or want to sing in the song nobody's aware that there was never leave words so  to amend the complaint that best write your claim as far as i can see that is correct however as counsel pointed out the amendment was made before any defendants were served  to add to claims against parties that were already properly joined as defendants and the court made that distinguishment between the other cases was it make a difference it makes a difference your honor because in two thousand and seven almost ten years after difference with the difference between and claiming any party that is a question that does not become apparent i would concede from the cases themselves however the the analysis seems to be that if you look at the code section two four zero seven states that parties may be joined upon the order of courts and i would suggest that that provides a basis for the court's holding in st yes interesting usually means the authority of the court right yes and generally we break it down into subject manager institution and personal jurisdiction yes ok the circuit court do you think his subject manager is stiction over this negligence count yes ok then with what we're talking about than his personal jurisdiction is that the concern that that is what it appears from the case law ok don't we have a whole lot of cases that if you participate in the case that you do in fact we have any objections and you are submitting yourself to the jurisdiction of the court i understand where you're going but let me let me answer it this way what the case is whole is that for the complaint filed without was not done here and that jibes perfectly with the holding in pesca doesn't make any sense i mean that's the courts have been saying for years but you kind of group me doesn't make any sense perhaps not but it is the law of this district and the plaintiff is not argue that those cases were incorrectly decided or that they should be overruled there is no authority for doing so and this court decided there are some cases that are pushing back against this nonsensical rule that you and i disagree doesn't make any sense right that there are some cases they're starting to question why we keep saying size is not based on any kind of difference there's a difference because the court has said there is a difference and that is the law that that is binding on the parties in this case that this court three years ago decided the pesky case and vaness for the proposition that the the no complaint with respect to dr kim in the two thousand and three case could not toll the statute of limitations under section thirteen to seventeen and therefore the first properly filed action dr kim was filed more than four years after the statute of limitations and as to the waiver argument that this special limitations was raised by dr kim in the two thousand and six case in his first motion for summary judgment so there was no waiver of that issue and even if there had been waiver is a limitation on the parties and not the court and that is a basis supported by the record for a firm a it's further undisputed and plenty of herself testified that she underwent no change in her physical condition between november one two thousand and one in november five two thousand and five when she was seen by a doctor he begs she also testified she had no change in her physical condition one the sole claim against dr kim is that he was negligent by failing to refer this plaintiff to an obstetrician who had delivery privileges but dr bird conceded that had she been seen abramowitz in that case that the defendant referred the plaintiff back to his regular treating cardiologist the plaintiff went back two months later to that cardiologist had no change in his condition and then subsequent to seeing his regular cardiologist a month later at a heart attack the court held that there was no evidence in that case that the first thirty allergist the defendant seen the play of his failure to do anything deprived the regular treating cardiologist of any information he needed to properly treat diagnosis plaintiff similarly here there is no evidence that anything dr kim did or did not do on november one deprived treating obstetrician dr had vaguely of any information needed to properly treat or diagnose the plaintiff and secondly there was no evidence enough in chronic that there was any change in the plaintiff's condition between the time she saw the defendant and subsequently saw her regular treating cardiologist just then then was it the case in chronic because in that case you had a cardiologist the same specialty as the subsequent treating cardiologist here we have a family practice doctor who is being criticized not for referring it to an obstetrician but for apparently referring her to the wrong kind of obstetrician and there's no testimony establishing how that made any difference in the outcome in fact dr burke conceded that he didn't know  i would like to briefly address the issue with respect to lincoln medical that wasn't raised by the previous counsel but since i am speaking on behalf of other parties the plaintiff in her brief i  think iranians we stated the standard of review on that issue is the novo it's not what she has challenges the trial court denying her motion to default link in medical after summary judgment had been given to the other defendants and then allowing lincoln medical to join in those motions as it's responsive pleading and then subsequently granting summary judgment play it hasn't challenged the summary judgment with respect to lincoln medical on any other grounds then the same grounds for all the other defendants which makes perfect sense because lincoln medical was sued on a vicarious liability theory if summary judgment was proper for the alleged agents it would if so facto be proper for the alleged principle so the question is that the trial court of uses discretion in allowing lincoln medical to file a response of pleading late and that is an abuse of discretion standard which means no reasonable person would take the view of the trial court the trial court had already ruled that summary judgment was appropriate for all of the alleged agents allowing lincoln medical to file a joint or in those motions was not an unreasonable act at the trial court granted a motion for default lincoln medical could have brought a motion to vacate that default which could have been granted they could have filed an answer and brought their own section at any time between the time she was seen on november fifth two thousand and one and the time of this event on november seventh at four am his admission that the standard of care didn't require  is devastating to plaintiff's case and the proximate cause ation issue it is the only option that dr bird offered that might have prevented the outcome here and by dr bird's repeated admissions that particular option was not required by the standard of care the other options articulated by dr bird as you've honed in on wouldn't have made a difference in this case by close observation he said it would have been sufficient to see this woman in two days in three days or week lee all of that would have occurred after the event in question he said he could have performed as the theory and section of the standard of care didn't require it and if he had scheduled it for november tenth or november twelfth that would have been within the standard again that wouldn't have prevented the injuries here why does he say the standard of care did not require a syrian section on november fifth he says because the patient cervix is closed because there's nothing but evidence of very irregular contractions on the fetal monitor and because the baby was not in distress those fads continued from the time this patient was seen on november fifth until the time of the event on november seventh when she at five fifteen in the morning her cervix is closed but she's then having severe contractions plaintive testified herself plain to suggest otherwise but ms johnson in her deposition and i believe it said page fourteen ninety one of the record excuse me twelve i knew one of the record miss johnson testified specifically that her contractions had not changed since november fifth had not gotten more regular until she experienced that severe pain at four am on nov is that right no i don't think so i think his testimony is that she should have it in terms of what she should have been told she should have been told that she was at an increased risk for uterine rupture by  history of two syrian sections and the contractions posed a risk to her but he also said that the nature of the contractions that she had a nov fifth didn't require a syrian section  feeder monitor strips and of ember fifth showed irregular contractions described in this braxton hicks the patient herself said i wasn't in labor i've had two babies before i know what that feels like this isn't what was going on the patient didn't report the contractions and of ember fifth she was advised of that by the nurse at st francis who said you know the strip show that you've got some contractions there mild to moderate they're not frequent  evidence and he says it three times in his deposition given that fact pattern the standard of care he did not require a syrian section but we would know about it instead of here require someone to say to her risk of a uterine rupture if those contractions continue and become severe and then what happens is we have a complete absence of factual foundation for that opinion plaintiff herself says nothing changed i went home members and went home november fifth and november sixth i stayed at home i stayed in bad condition remained the same i had dinner with my family and it wasn't until november seventh at four am that these contractions increased in frequency and in severity and by dr bird's own admission they had to fact pattern did not require a syrian section under the standard of care so that they had particular deviation that they should have told her all these things still the necessary element of proximate cause there's no indication that that the that the condition that would have demanded that treatment existed in fact the facts exist that it didn't exist to support that opinion so under all of dr byrd's other options there's no proof of proximate cause once he takes the syrian section out of the equation as necessary under the standard of care the rest of it all becomes irrelevant the rest of it wouldn't help the patient at all and he takes the syrian section completely out of the equation he doesn't know what dr three would have done he gives dr three the same options so with respect to all of the defendants there's no proof of proximate cause there's no proof that anything they did or didn't do resulted in this unfortunate outcome i could talk about the cases cited by plaintiffs but as justice tice described all of those do nothing but prove out the deficiencies and plaintiff's proof here in each of those cases the plaintiff relies on it was either an abnormal finding that warranted intervention or a finding that was mis diagnosed we don't have that here we have a lady who came in for a check up was sent for fetal monitoring because dr had that he couldn't hear the fuel her rate she's not in labor it's a regular appointment she's having no difficulties she comes to st francis hospital the feeder monitor shows that the baby is doing beautifully the fetal heart rate is just what's expected shows a variable decelerations the mother is advised everything looks good we've heard the fetal heart rate you're fine this isn't a situation where she came in and pain w mate cause issue with respect to engels they're another step removed as well since i'm here arguing on behalf of all defendants ingles sent the patient to st francis at which point everything was done the dr byrd said should or could have been done so there even a step removed from st francis and from dr hitz i think this case is very similar to the weekend that case where this court determined the summary judgment in favor of the defendant should be affirmed in fact i think the facts and we'd in fact were even stronger because in reading back there was an abnormal finding that was the case i believe where the lady called complaining of the severe head headache and there was a delay she called again the next day i still have a severe headache and now i'm vomiting the doctor said well just rest at home later that night she goes to the emergency room the c t scan of the brain is performed and she's diagnosed with a brain incest the expert in that case couldn't say that a c t scan on the first complaint would have revealed any injury to the brain and couldn't say if there was an injury what the treatment would have been here we don't even have that initial complaint we don't have doctor had veggie saying if if the sublime done this would have been demonstrated it would have demanded this treatment we simply don't have that here so i would suggest to the court that the trial court got this right in the first instance there is no evidence of proximate cause plaintive never said i would accept a c section if one were offered to plaintiff never said my condition changed between nov fifth and november seventh we have to live with the record we can't live with what we wish the record showed and the record shows that dr byrd was unable to link any deviation hospital for observation or been told to return to the hospital the next day for close observation so the next day would have been different and in their reply brief is spelled out more on page four  counsel i believe for same francis is making up a hypothetical there yes and i'm just going to read it if we assume the factor treats some mischance in a nov fifth and didn't value a sion and was concerned about whether we was closed do you agree the doctor treat would have complied with the standard of care if he had had his discussion with miss johnson about what type of delivery she wants set to see section for either nov tenth or nov twelfth as you testified last time in center home and there's a lot of comically about it and actor burt answers my answer to your question would be it would be within the standard of care if all what you said was true for him to do one of three things perform course ever happened because even see the patient that would be the answer standard of care wise to your hypothetical question of how doctors treat had seen her the next day that wait but the next day and if he had seen her the next day there would have been yet another opportunity to save the baby which never happen determination that everything was ok it's i don't think this record bears out any finding based on a forty five minute fetal monitor strip of woman with two c section prior c sections  examination that everything was ok dr bird never really said that every time he was forced into something like that it was based on a hypothetical that never happened so often he says