better after the facts in question passed away so we're representing his state at the time he went to the v a hospital he was a seventy year old man who has as as his wife series of lawsuits that were filed against against medical professionals the general assembly one to stay out of the times questionable nature and in doing so it would bring relief to the and qualifications as a medical professional inquest that person has to certify that he's willing to testify that that medical care he reviewed reads the standard here in other words that there was a negligent act but then within those records we did not assert a rule on j circulation we we've never never made any secret about that we don't think it's appropriate and the reason we don't think it's appropriate carolina cases that have dealt with this very issue have been circumspect in segregating the medical negligence claims from supple states is the defendant here now if this occurred at a private hospital or a public hospital not the government if it were the government or not a v a hospital or united states  facility you don't deny do you that you could actually bring a professional malpractise case against the hospital correct if you could really if you had facts to support it and you had a just dish and willing to testify under rule nine stand well but on these facts you don't mean to suggest to you that you couldn't find an appropriate and this expert would have referred to standards of the american hospital association organization of health care providers i mean this in other words my point is and this isn't actually a friendly question you this could have been brought up as a medical malpractise case that's approaching ok your argument is that's not how i brought it that's correct and just because it happened at a hospital doesn't make it a medical malpractise case that's that you argue that's and frankly the district judge at least some of the language in the district court's order seems to suggest that the district court thought that because it occurred at a hospital political simple negligence case would that have an impact in other words would a trial of this case on the theory of simple negligence look any different apart from the absence of expert testimony would it would have actually a trial of any differently would with the measure of damages be any different if there were medical malpractise you know you're no different you'd have to prove that the hospital personnel are still to keep them from falling out of it that's correct that that's your point that's correct and whatever damages flow from him falling out of the bed would be the limit of his the by the government's liability would you want to introduce evidence of that are presented here that specifically that no one was allowed to visit the patient while he was in the ninth floor education when all of requirements so we intended there are two bases for finding that the trial court error in dismissing the case and one rule on j c is not this case it is a simple negligence case and follow council just conceded that he is willing to try the case without evidence that you undertook a special duty which is what this falls protection from it's especial things you know about seventy eight year old in this condition is that you don't you don't run the risk that was wrong here has nothing do with medical judg if if if somebody hires the lady across the street who doesn't have a regular employee that to look after a grandmother who's agitated seventy eight years old shows up apparently some health professional actually admits her to the room or a scorcher to the room and she finds him on the floor yes your honor and i think that that ha yes i believe the medical records which was triggered by deal that i don't think you addressed and that is how unpublished opinions are treated the areas from circuit to circuit to we have rules that say that they