with normal new verse in so the brachial plexus nerves in the neck were damaged adversely affecting the muscle function of the arm and shoulder now seems to me that turns on two real issues one is under fourth circuit law must there be a permanent injury under the facts of this case for there before there can be in a cruel secondly assuming that there is a requirement of permanency for there to be a cruel is permanent seat to be know precisely thank you judge shows for that insight that is one of the reasons why it's so very important to determine permanency for purposes of the crew in fact cause of the injury when there is a mistaken diagnosis or in utter inability to provide a diagnosis about the medical cause of the should be based on a variety of factors first of all the the probable cause aspect which records permanency in and of the facts of this case and law of these issues in court but i think they lead to the same result and that is it without permanency how on earth is the plaintiff to determine  what the injury is and who calls the the medical evidence goes unchallenged in this case about permanence there is consistent testimony from the plaintiff so experts to the effect that under the circumstances of this case permanent see could not have been determined until two years after the child was or under certain under the facts of this case there was no way to determine permanency until the level of an improvement plateau at age two interesting lee enough the court improvement had plateaued it around thirteen months of age but the the testimony an affidavit of utter reson it points out that it had not in fact plateaued it that date that in fact the thirty notes come firm that there was continued improvement until the child was two years old so the court below in effect elevated the mistaken belief of a later witness on complex medical issues and did not take into account the the  unchallenged medical evidence which is subjective and described in scholarly articulate terms about all the various factors that are considered in a situation like this to determine the date when permanent seat is determinable so we believe under this case cursed out or is right on point when it talks about the utter inability to diagnose the medical they went to a lawyer undoubtedly for legal advice and i have no idea what that lawyer told them it was me but i presumed that if that laurier was acting in accordance with what i believe to be standards of care he would have told her he would have told the parents that it would be ethical to file a claim without a legitimate back to will and legal basis of which neither existed until two years after the child was your child was injured and the doctor yes me and so if i may one point i mentioned earlier is is the second y controls or whether the court should look at a combination of objective testimony and subjective test the latter is the easiest to address because the court has to look it subject to testimony then they have to look at statements like i saw this was an ugly the live i knew we had grounds for a lawsuit i knew and i'm sure that this was going to be a permanent injury because it lasted more than twenty four hours why are the older brother had a similar injury but it did result after twenty four hours so we have here of laborers evaluating these issues without medical training without medical knowledge making factually incorrect assumptions conclusions opinions and to the extent that those are mistaken it's hard to see help there would have been any significance on the nature of these aspects the injury and who calls the injury before accrued can occur were not made the point about objective evidence should be controlled subject up and should not even be considered relevant because it is so easily misunderstood mistaken it so that's why we say we have a dollar to cheap and reliable expert we have the one of two things either act unethically under rule eleven by filing suit without a proper basis or by watching the ear because a well they work every day with heavy machinery the fact that one single doctor said well you know that might be caused by the antibiotic treatment that was applied to your leg that was enough for the statute of limitations period speaking running now this case even the experts the money i for six years later say that from the get go you would have known that you had a five hundred twenty percent chance that this would have been permanent so you don't have to wait until that day comes you don't need to wait until you know that your injury isn't going to go away that your injuries going to become permanent in order for you to bring suit you can always bring siri that says you know right now i have a temporary injury i don't know if later on completely naive i mean the plaintiffs say i was aware that the doctors were there as possible parties on the fourth of july and that six thirty one the plaintiffs say that they knew something was wrong once they had finished delivering the child what doctors and sort of maybe this is a little bit unclear from the discussion but there's no there's no evidence here that this was actually because of natural forces the doctor testified in his your obligations to all the statue of limitation i mean the way you play the point in that instance is pretty simple you say you know i think i have a temporary injury a temporary injury is still an injury but two years with a nonfunctional arm it's still pretty bad you say that you know that might not go away when you're a plaintiff and i was starting to say if you have hit by postal truck and you have a back injury you don't and you're only twenty years old you think this thing is going to go away it does go away you don't have to wait till you're fifty until you need to have to wait in even even the rights groups even dr plus goes from the get go there's a five percent to twenty percent chance that any of these sort of injuries are going to be permanent so from the start you know there's a chance and this is exactly the sort of issues like kubrick to which is you don't know the cause you don't know if this were heavy machinery and working with that day to day you don't know if it's from antibiotic treatment those are issues that you sort out in litigation or you don't get to wait years and years and different because those are issues that you can litigate issues of causation tort law which were claims or issues that are very good you know every single day people bring experts to decide whether something was caused by doctor was involved you know we are going to sue the injury you know who you're going to sue and that's the point of view because once you have those critical facts then you can start to engage in your get medical advice get legal advice figure out how you can best bring your figure out whether to bring a claim at all and in this case we know that they started to get legal advice and that's pretty key because the entire point of w or a statue of limitations is so that you can start in here there's over six months in which they're getting illegal but we know that from the fall of two thousand and ten roughly until april two thousand and eleven which is when they first sent th s i mean that you know there is some suggestion of tolling and i'm not sure that necessarily applies here it goes have waited for a very long time in fact those three and a half years the roughly until they filed an administr suit in order to make sure that they were as close to getting within the statue of limitations as possible and if that had been a case where somebody filed two years and won it out you have a much different sort of dispute grief of his fears about when exactly knowledge get referrals over to p t they get for all sorts of orthopedic doctor's office three days after is when they actually go see the work of the doctors maybe four days after is when they actually go see the doctor or the doctor's office he lists on his form that the date of so like you know we might have some dispute again at the margins of you know did they know that the baby was injured right when the baby came out do they need an x ray to tell them that but this is a fairly narrow science and the only other point i wanted to raises under south carolina law this is only a notice of intent to follow so even assuming we think that they've filed within two year notice under south carolina law they had to actually file the civil action that would all within the us all access say things like and so in that sense you know to that extent that the court needs to already a preexisting injury so there's a preexisting condition and there are the doctors are trying to treat that preexisting injuries so it's not clear if the negative consequences are because of the preexisting injury that was already there or because of the doctor's treatment or if the doctor's treatment didn't you know fully resolved things but this is a very different it's not like somebody said before birth while your baby is knocking you know functioning arm and the that the ill effects of a medical procedure will be temporary the patient does not know that he suffered an injury until he learns that is harm will in fact not go away after temporary but he goes on to say that he openly doesn't remember his precise words with this patient that is his custom and practice of routine to tell patients that usually  you've got a big baby there's a difficult the livery and that that ninety percent of the or t it's ninety percent resolved within a year spontaneously that's not a direct quote but the close ups so i believe that the  my proposition that an objective view of permanency is required kirsten only on the permanent see issue talks about a mistaken suffered injury that will in fact not go away we don't in fact suggest something other than the patient's subjective you that it's permanent before the doctors say it third the auto case talks this the parents here thought they had knowledge because they had a control group of one their older son they had a test group of one their younger son they thought they had reliable knowledge which is just absurd it's like a football situation where somebody a player gets a stinger injury to his arm when his head is moved to the side just like in the b some of those might be out for the rest of the game some might be out for a couple of games but if a layperson thinks this players out for longer than that player that means this player has a permanent injury meaning it just proves the unreliability of lay testimony lay conclusions which are al