and i think we have a case if our image is in effect sort of one of first impression for this court and that is the issue of the designee which is was the real issue in this but it was uncontroverted that dr shero was a reasonably well qualified surgeon and that he could do this procedure in fact better sure it was the one who was initially that there are numerous evidences of fact that judge meyer did not take into consideration now i know the courts have this court nurse call one of my partners and he was a senior partner with a question doctor we had done this before but when a leak came in the the tent in tents a share of the original surgeon there is a conflict here a tremendous conflict because if you is the record reflects the n t and the exhibits show that the operative proportion in this case of the operating room i said oh if you're going to take over this case then you're the primary and i'm the second i'm the assistant however however and that's where just judge meyer was mind been directed by cheryl and that's really where the designation is to direct someone to say he hasn't been directed by cheryl to go in and try to go back  allowing them to go ahead and do that you know that's where the bad medical battery comes in that's where you head down in a substantial variance you have no consent to the and all of a sudden cheryl from two years before is now saying and contradicts his own operative report that he doesn't become the assistant until after the surgery that's it becomes at that point  is recorded everything's on a recording system and they take it off of the record but there was sufficient information there was i mean we had discussed this in the motion of women e we had discussed this then when discretion for to start with the very principle the very first principle is is the statement relevant if this statement is a relevant statement as this court well knows you can you must decide this as i'm on a dyno whole basis deviations but by two thousand and as dr frieden testified and with that statement but it was done rebutted by the defense experts that that that was in fact the standard that you have to it bit you have to follow in say it wasn't on that he didn't understand the standard of care and that has to go on that issue of credibility as to whether or not he did or did not understand it should be going to the  know and then i'd like to talk about the standard of care issue the other issues that will raise of course in our brief one of those one of the issues is was this standard of four or the act the judge my denying our motion jay and all the whether or not there was sufficient evidence to reverse the jury's finding so we get you've got to go back to the record you can glean from the record from the record what those standards of care are and it was even dr ward the defense expert had to agree that you want to be able to see something before you cut it and that's what the whole issue in this case was lee never saw it he couldn't find any created a situation that was under unnecessary that would not have happened in the absence of his negligence and that is why this court has to we are not standing on the bridge of a naval vessel transferee control from the captain to another officer you know we are in an operating room there is a man lying on a table with instruments coming out of years of experience fifteen hundred surgeries that this and so dr shirley makes the call for help and dr lee comes in and i don't think that any of the case law that's come out of this district or any other form the consent form says that the patient is allowing the doctor to have any any assistance or designate determined by the doctor performing surgery anybody from the standpoint of practicality situation i think when he came in he probably came in as an assistant because at that point when you look closely at dr sure his testimony and i'm talking specifically now about pages are ninety nine  transcript of ninety one of three and at that point he says he wanted dr murray to do the do the surgery laparoscopically if at all possible but he thought he wanted to open and he wasn't views it as at that point because he's the more experienced doctor he made the partial a section he sutured it out i think at that point that was the understatement so i don't you know the fact that the nurses didn't hear what they know the jury to decide his case approximate cost really there was a lot of testimony about the complications and the difficulty of this means of the enemy you know his date the two witnesses the nursing witnesses describe the gallbladder left out of the critical view well off all i think he may say that i don't disagree with you i think your recollection the record may be correct on that what i'm relying on is the fact that both experts agree that across the board nationally in a half percent of these cases it still happens even when you're when you're doing this surgery the way you're supposed to do it that's probably enough of a there could be a critical step overworked there's no question that this may you know point is expert was citing from an article that said that this perception air force her and i don't think i did not understand his testimony to say that the critical view method a really it's a possibility of of a misperception  didn't change that the concept behind this perception error that he described was that you're viewing the surgery on a television screen it's two dimensional one that doesn't change if you do a curve you met you're still viewing the surgery on the television screen it's two dimensional and that's what the art of the expert cited says causes a misperception there so you know i don't know that it was clear what critical staff might have been overlooked in the critical view that but you know  probably excluded you know as justice per pointed out already we really don't have a record of the hearing on the motion limit when we're talking about the use of discretion standard and this is the discretion to use a reviewing court really in trust  that points counsel provided the court reporter to take down the transcript so there was and i think there is an order in the record that indicates that the judge certified the court reporter that was hired because i don't think this record comes actually from that record in the hearsay exception i think good but we've made this point in our brief so i'm not going to hammer it here but you know there's so many different interpretations that you for the first days that you can put on that phrase i mean from my maybe you should let him make you explain what did you mean by i can understand the question but i think from the standpoint of waiting number one what does it mean it's unclear it could be interpreted by the jury of something very prejudicial and arousing passion that it was he was being cavalier which is what i think they're suggesting here i think from the standpoint that it has there's no context of the remark because nobody heard what the nurse said she did hear the doctors even before this comment was made but she did not hear what they were talking about so there's that issue so there's nobody to really say what the conversation was and i think ultimately we're really you know  on the side of why the judge i think reasonably exercised exercised his discretion here is because it's really it's not probative of the issues in the case and when you look at the jury instructions that were given and specifically the issues instruction which is duct i mean that was a given in this case so there was clearly someone certainty and that's already a matter that is in the standard here thinking you're really fleshed out and again i just don't think it's in fairness to the trial judge who in front of the issue and decided to not have a complete record on all his reasoning for how he ruled instead to just look at what is essentially about eight or ten lines in the transcript where the pla say ask them to reconsider this just as nurse the jews take a stand is being admonished not to make a comment that's all we've got the the only other issues that i think counsel touched upon it was the glory and there it is there was this testimony in the sidebar in the deposition from nurse william that the doctor made this statement on other occasions to other residents and other surgeries which again points to the disconnect as to how this is not proven to the surgery here death seems to indicate that the current is something along the lines of have confidence in your skills person here in the face of adversity you know try hard that kind of thing it's a pep talk and it's something that he does apparently on multiple occasions with others the nurse said residence and you know physicians this is part of his you know dead has to be the primary thing you can only have one surgeon and the reason this is important is because the concerns have to make clear who's in charge at all times and it's reasoning was not on that on that consent then there had to be a handoff there had to be something  carver help them to see he did not call for a primary to replace him and so he didn't have the authority to be ok from the primary to do that he just did it so it was a it really was passive and if that's what you want to say a consent means that anybody who is called in to help can take over i think that's a very dangerous  it going to be something where the primary who is the one in charge or do under the medical canons in charge of the patient it has got to make a determination and his mind that he's passing off the care to another patient because that's really what primary means that