to thirteenth set between june fifth two thousand and one and you nineteenth two thousand and one the record made recommendations for certain that was the window for the recommendation for surgery and whether or not surgery should opinion whether or not dr davis had to take a firm steps to schedule the surgery in fact he was asked after a few fifty thousand and one when he recommended surgery and the patient said he wanted to get surgery you don't have an opinion if you did enough or not enough to make sure the patient got walkover where surgery was taking place because you don't know about the interaction between the insurance company and what was going on with the hospital do you and at this deposition dr  based on anything a recent poll expert would look at yes your honor in this case take this case but that is true most of the part in this case the one excluded document was part of the medical records it should have been his staff about scheduling surgery it was a reasonable basis for him to understand what was going on with that schedule and it ordered to inform the jury about what back to davis was thinking and we factor davis was aware  reason it wasn't scheduled in that note discussed insurance but the case folks talks about excluding information because of insurance well poverty is not an absolute that goes to show the jury will not client to have that information regarding insurers in because he was prohibited from getting the surgery so the wealth and poverty issue as to deal with the predecessor could have been a limited instruction but it works to limit the sole issue that really went to the jury regarding the schedule of surgery and not allowed my client didn't defend himself when throughout the trial the cross examination of both my client and the expert  with the surgery manipulation in both their minds that is not the preferred option they were trying to that's my point they were trying to schedule the surgery and working to do that well once the surgery was that forthcoming did the doctor have an obligation to do something a five point  conveyed to the patient and was not really an option because he chose surgery the the theory of there are two theories of liability in this case one was a failure to inform and the other was a failure to diagnose and treat general verdict i would submit to the court that if the evidence on one issue is overwhelming the court can then not rest on the fact that the jury could have come back with one of the other issues but i would submit to you that what we could if w firm on the general verdict on could we not know if the court was going to didn't do that based on the argument in this case based on the focus which was directed at the scheduling i believe was improper and i believe that the jury should have been given the highly prejudicial your honor and the second issue regarding the closing argument actually began in opening statements it has to do with the issue regarding the jury instruction in the issue regarding the role of the jury using their concept there is an instruction if your is to use their common sense but the issues regarding common sense is in a medical malpractise case that you have to use your common sense dr brash and then closing argument you basically told the jury to disregard expert testimony and use your common sense i believe those are so highly prejudicial taken in if you would have nature your honor in addition to the other issues ankle spine and because of that as dr pressure testified he didn't see the whole picture he did have to operate on the ankle within six to eight hours and he did that because that was an open fracture and that was a problem but that does not excuse his failure to see the whole everybody agrees it was there because it didn't of happened out of the blue he had a duty to inform tony of the options and this never happened finally he failed to inform tony of the timing issues and the information he most effectively that he provided  he's got a permanent it is never been treated it was by the time that actor davis never even noticed the ac separation and so september when it was waved way too late that the ara had to be treated you know within six to eight weeks and offered him the surgery when he was in the hospital and he said no well why did he they know it's a reason any of us would have said no while he was told was well we can put a rabbit or we can just do it and tony says what's the difference oh two weeks just two weeks in that there was not because pressure has defied that there would have been a better result and the jury was properly allowed by the reasonably prudent person would have made a different decision and been given the opportunity  something in there was talk of manipulation although it would that be a treatment you would want you would still take it over nothing perhaps if you were offered it in this case the plaintiff was never offered manipulation and just  injury here also the jury heard numerous times that this was not after davis six five so independent review talks a lot about this involved credibility and this is crucial to the packers credibility but it is just natural in the slightest way because there was don't issue about the factors that ability on this first dr davis testified that he did everything he could to schedule surgery but the hospital would not give him a day counsel will argue that the databases office try to schedule the surgery so to me even if there was any error in their questions because it was just it was just hearsay inside the record it was hardly reversible