parties would approach them podium and tell us who you are  experts who or employed by the state soley for the purpose of rendering this particular diagnosis whether or not these people that these experts so called experts would be able to commit medical malpracti immunity doesn't apply how is it you don't have to file this in a court of claims since the doctor back only looked at this person your client this resulted in her case of a court order as their right also yes i so she's there to court orders for well the problem with that and it's something that i considered and my client considered but the problem with that is then you get the same problem that you have in every other and every other proceeding that is especially the lieberman case in the fourth district conflicting because then you would have conflicting judgments you could potentially have one court saying one thing another court saying another thing two different triers of fact coming to two different conclusions completely with two completely different set of what was the criminal case would trump be scored it claims he said everything those those those because you because because two separate proceedings and therefore you have two separate triers of fact that if that happens you could potentially end up with two completely different judgments at the same time depending on the timing of those suits so it would create a real mess in terms of unity of decision you want to have i believe the policy of the courts would be to have one single decision being made in terms of whether or not this guy is especially violent purpose person and employee of the state she's an agent of the state but as an agent of state this is she had discretionary privilege i don't believe she does have discretionary privilege in terms of committing medical malpracti end it was not raised obviously by a pelleas and i think the reason why is because we're talking about here is gross negligence we're not we're not talking about a good faith effort i believe i believe that the case law on that is that for originally in two thousand and two there was an evaluation and there was a commitment under arrest and to the s p p right correct ok which we sell so it's in existence he was the if the attorney general had not decided and by two thousand acted within the scope of care what would have happened is they would have said mr duke has no symptoms for the last thirty years we have no symptoms at all of any compulsion of a mental disorder we have no we have not and then piano is not consent does not exist we have no disorder therefore mr duke does not suffer from anything therefore the problem while come back and say this man doesn't suffer from anything mr good gets released he doesn't appear to be suffering at all because he's he's never sought his own release i'm sorry he absolutely however my client has seen the statistical likelihood of winning at a jury trial and has decided to pursue his appellate options only we as far as we know out of five hundred cases i mean there's only been one or two wins in the entire state so statistically speaking it's my client has decided that he's a poet routes is his best options and he's taken those and we have so very very hard to get discovery for he's asking for his freedom and the damages from his loss of freedom act how how can you say that if he has he has a key to this he has his own key to get out and he hasn't used because if he were to go to trial without this medical malpractise case he would not be able to make the arguments necessary before the jury to have a reasonable chance of winning well rense and again it's not the purpose of lieberman and them being wise to get through this issue when do you do it and how do you do it right and so in terms of timing somebody has got to get first step we're getting at is the judge i can only tell you that the case been set for trial now for a year and a half and i have asked for no continuances been continued for times i'm ready for trial and i've said i'm ready for trial and i have to manage it several times over the last year and a half i assure you i have tried to get to trial it is with my client mr duke mr duke in the last two years has seen the writing on the wall and has wanted to go to the last two years we have asked again and again and again to go to trial we have not caused those continuances in the last two years and the only reason the case may continued in the last six years is because the state has continued to change experts every time they change was not a party to the case and it's not a counterpoint and there are no kind of things you cross claims in these days you can't you can't you can't hand a claim against the noun party without leaving court and that wasn't asked  they're given a flat salary to render these diagnosis again and again and again they if they did not under these diagnoses they'd be fired they wouldn't it wouldn't be retained anymore this is this is no different then some of the medical malpractise firms in the city literally turning to one of their doctors who are on staff and say hey would you be my expert i don't to preserve crime and i don't think i understand that argument because he's here isn't it when when there was an attempt to it and that that they were and that he was and that he was then dismissing the case because he believed that the lieberman case and from the fourth district stood for one proposition and that is one can only attack the state experts for medical malpractise if that mr duke is committed and then through the appellate process radius process is found that not guilty and then he could sue even though he would he would be well past the statute of treating him in some manner no you know it's certainly she isn't it she is not treating him in any way shape or form however she still has an ethical duty to comply with the standard of care she's not believed from the expressed opinion that he's extremely dangerous to your all sorts of humans and he should remain locked up dental care for him it's clear that he certainly doesn't agree with better days care because that diagnosis is then used specifically relied upon  about it i don't see how this care i don't see how that falls under the idea of therapy for mr duke or anybody else from that doctor there may be some doctors there rushville who may be you know giving him pills or trying to talk to him and trying to find out you know doctor who sees someone might care but he she is doing the exact same thing she's making a diagnosis that is going to affect his treatment it's going to affect his life and that is that is enough of providing care that she w is true however i don't believe it and i don't read the case many times and i know you're screwed but i don't believe in that case you specifically answered the question of whether or not you know that treatment and care was w being provided i think the case was was it was based on was based was based if it correct me if i'm wrong was based on whether or not there was a confidentiality bar and not whether or not that particular doctor was subjects to the medical malpracti participates in the evaluation this is contrary to the goal of mental health services that are provided in the context of a therapeutic relationship between a therapist and patient so there is no there peter relationship and the speaker to find that  true but what has not what but that did not say specifically and perhaps your honour's will say that specifically not israel is is whether or not whether or not these doctors should still fall under the medical malpractise care act subject versus let me take that backwards then and that really touches on something that pelleas brief touches on which is one of damages we believe that there are damages immediately we believe that damages occurred a soon as dr buck and dr weil file at a soon as their opinions are incorporated into the petition the reason why is because as i made some allusion to earlier what rigel say that mr du doesn't have a mental disorder then he gets released immediately and he's a free man today you fat experts say no no no he's not free right well exactly because the only thing that matters to the court is what the state's experts say not what our experts say well it's always a man and mentally tough one out of five hundred means he's being detained based on whose opinion on the state's expert's opinion specifically the idea extent but what has happened in the meantime is dr bach because and i believe it is because of the fact that she is been now she had an ethics complaint against her she had that lieberman case she had this case against her she now simply believe that any time a doctor takes on a to to diagnose a patient knowing that that diagnosis is going to have a severe impact on his life that he that that doctor has undertaken and  has assumed a certain responsibility right then and there but i think that just as when point was that it's not a physician patient relationship it's a witness question and i n n tonight and i understand i truly understand the point and and i understand you know where the court's going with that except for one fundamental difference and that is that this human being right because of this diagnosis wound up being imprisoned which is no more the battle right but with all due respect we don't know that until the hearing is held and the result is run what it was it was rendered it during the detention hearing and then supplanted in twenty ten when the court allowed the update of the epic titian it so it was determined in those proceedings not it eventually will get to the point where we have a trial eventually is clearly a successful claim would be inconsistent with their lawful commitments the adoption of the heck scheme here of wades the inconsistent effect of awarding money damages for unlawful detention to lawfully of challenging his conviction if he makes allegations that are inconsistent with the convictions having been valid check kicks in and bars his civil suit here no matter how you call heard plaintiffs appear to be asking for a declaration of their commitments client has not been has not been found to be an s t p yet and therefore this is the proper time in the trial court to bring these issues because all the issues can be decided the same time and i don't believe hacking lieberman stand for that i think what they're saying is you can make more mischief and they're trying to not have the enter mix of these two things which will be which which undo one part of a case to create another case i believe that a jury respect i believe if we thought if we finished the trial mr jukes issue of whether or not this constitutes medical malpractise will be heard by no one ever and therefore he will be denied the profit the mental due process to have this issue ever heard it's a civil right then also we have a statute of limitations and then and then and then the case cited to griffin appellee century says you'll never get to turkey to get to that issue because you'll be barred by the statute of repose or the statue of limitations or something else therefore this issue never gets hurt and mr mr duke's procedural due process is denied my well but it's here to this isn't your interregnum here this is you're not anywhere right now and so you've got to have something to feel i think we would be so i think we would have all these issues heard in the trial court a fallout if the trial court were allowed to hear if the trier of fact were allowed to hear the two issues and that is whether or not he committed medical malpractise and at the same time whether or not he is an s v p because those two issues are very closely related they're not the same but they're very closely related you know to the seat and we'll hear from those that for a little while and then we'll give you some time for you good morning it's been flushed out pretty well here i think one issue that wasn't fully fleshed out it but leave in one was saying about raising these issues in the trial sitting so i think what it's saying is as a defense mr duke's defense to this s p p proceeding to have him committed he must raise the issue of the the i guess the on appropriateness of the of dr buck's opinion so he goes to this proceeding he cross examines dr bach is this within the d s it's not where did you find it is it accepted by experts in the field know why she says i just made it up or whatever she says he brings his own expert who says i worked the d s m it's not in their decision in balad diagnosis there is with the experts generally in the field of psychiatry if he wins that then he's not committed he wins the proceeding and he's his the proceeding has been terminated in his honor said you have to prove duty breach of duty price because then in damages that you know it may be that during the course of the s p p proceeding the court makes rulings which may be good in favor of  appellate court underneath that whichever circuit that was had had raised some issue about perhaps the statue of limitations comes into play or because the person been a car straight in the gone through the criminal process for so long but the supreme court said in the damage or that until his conviction has been overturned or he somehow wins release in the criminal case so that's when that's when his that party criminal party alleged criminal complaints against medical forensic doctors who express that they're dangerous they in turn now filing a medical malpractise suits against the same doctors claiming is somehow a therapeutic relationship with them i suggest it's kind of a both sides of the size lieberman which talks about this diagnosis this particular piano piano as without consent as being a diagnosis it was affirmed by or supreme court or supreme court also talked about the same diagnosis in radio tension of stan bridge two thousand and twelve iow one one two three three seven if paragraph seventy eight the seventh circuit considered this diagnosis and how there was a good diagnosis in that mickey vs part time five ninety three f thirty five thank you very briefly equitable stoppel because for the first time in illinois jurisprudence the very first time we would allow any action to be barred not because of a final determination on the merits in a separate proceeding but merely because one is a trial is pending work is potentially going to happen sometime in the future equitable stop it can only be had if there was a final judgment on the merits so this court if you didn't door says the finding of the trial court would for the very first time on more equitable stoppel from a finding that a finding on the merits a full finding  what bars this other proceeding i mean we're going into is a huge expansion and this case and this case could potentially be used in all sorts of interesting ways because because unfortunately equitable stop it has to be based on a on a finding by a trial court a final finding by a trial court not a potential finding in the future so i would i would with all due respect ask and that's good enough for the act there's nothing stopping them from saying that because there is no minimum that such as in the as in the in the medical malpractise act and medical malpractise eka have to stay within the standard of care these doctors don't they're also at the function of the trial court to control the proceedings to be sure that only relevant in admissible evidence is and i completely agree with your honor we have filed in fact based on the new case which just came out about four to four months ago or so the new