Class Action (Nazareth) 53201-10-20 Mary Nicole Meir – Clalit Health Services - part 3

(2) A class action is the most efficient and fair way to resolve a dispute in the circumstances of the case.

(3) There is a reasonable basis to assume that the interests of all the members of the class will be represented and managed in an appropriate manner.  The defendant is not entitled to appeal or request to appeal a decision in this matter.

(4) There is a reasonable basis to assume that the matter of all the members of the class will be represented and managed in good faith."

21. We will examine whether the aforementioned conditions are met.

Personal cause of action

22. According to the provisions of the Equal Pay Law, "an employee employed by the same employer in the same workplace is entitled to equal pay for the same work, essentially equal work or work of equal value." Much has been written about the essence of the right to equal pay in recent years in comprehensive judgments (Labor Appeal (National) 1842-05-14 Jerusalem Municipality - Kedar, [published in Nevo], December 28, 2016 (hereinafter: the Kedar Case), Labor Appeal (National) 1809-05-17 State of Israel - Alashvili, [published in Nevo], August 15, 2019 (hereinafter: the Ashdod Port Case), Labor Appeal (National) 65841-02-18 Starklovsky - University of Haifa, [published in Nevo], August 16, 2020). We will only briefly say that one of the main goals of the law is to deal with two main situations: "One, the payment of low wages to women compared to men.  The second aspect of the phenomenon of wage gaps is related to occupational segregation, which is a situation in which there are professions that are traditionally considered "female" because the concentration of women in them is high, such as: nursing, teaching, social work, secretarial, and more.  These professions are generally characterized by relatively low wages compared to other professions that are traditionally considered 'masculine'." (Parashat Ashdod Port).
23. In the present case, we are dealing with auxiliary force work and the work of the satirist, and we must examine whether these are two equivalent positions and whether there are differences in salary between the two positions. It should be noted that at this stage of the decision we are examining the aforementioned conditions in relation to Carmel Hospital, since the cause of action relates to wage discrimination within a group of auxiliary workers in the operating rooms of Carmel Hospital, but also with reference to data in relation to other hospitals, to the extent that these were presented to us.  It should also be clarified that the Applicant does not claim a lateral salary comparison between the various hospitals, but rather within each hospital separately.  The question of the definition of the workplace will be examined at the stage when we will discuss the class framework and its implementation, including the question of defining the group.
24. We should also mention that at the stage where we note "it is not necessary to investigate the entire claim, with all the claims in it. The tribunal must examine the fulfillment of the conditions set forth in the law for the approval of the class action 'to the extent of proper reasonableness' and 'prima facie only', without turning the stage of the hearing of the motion for approval into a hearing of the action itself" (Labor Appeal (National) 26328-09-14 Harel Insurance Company in Tax Appeal - Eshbel [Published in Nevo] (December 3, 2019)).  In other words, it is sufficient for the court to be convinced that there is a reasonable chance that the claim will be decided in favor of the group.  It was also held that "the prima facie examination at the stage of approval of the class action should not place a high barrier to class plaintiffs...  The information gaps that exist between the parties must be taken into account.  However, this does not mean that the burden imposed on the class plaintiffs will be light as a feather.  The class plaintiff must raise an initial burden - a burden that must be given meaning, without being unbearable, while the court gives its consideration, in each and every case, to the relative difficulty facing the class plaintiff when he is required to prove his alleged claim" (Civil Appeal 5378/11 Arthur Frank v.  Allsale [published in Nevo] (September 22, 2014)).
25. As we shall see below, there are many factual disputes between the parties relating to the two roles before us, including the type of tasks and the scope of time required to perform them. We found that the Applicant presented a preliminary evidentiary basis, by means of pay slips indicating the gap in remuneration, and by means of witnesses who testified with personal knowledge about the work in the operating rooms.  On the other hand, the Respondent chose to present very limited information, and we will expand on this in the following sections.  In Labor Appeal (National) 33793-12-16 Avigal - Bug Multisystem in a Tax Appeal [Published in Nevo] (December 6, 2020) (hereinafter: the Bug Case), the question of the burden of proof regarding the definition of the class class and the joint question of the class members was discussed.  It was argued in the same matter that failures in the execution of pension deposits to the class plaintiffs were not proven to be systematic harm to the employer's employees, but only specific errors.  The argument was rejected while the National Court ruled that "in a situation in which the employer is alleged to have committed certain violations, and in support of these claims, the class plaintiffs' pay slips are presented in full, then, as a rule, in order to prove his claim that these are specific errors and not systematic conduct, the employer must present a sufficient mass of evidence and not suffice with the presentation of random pay slips, very few.  No attendance reports, no systematization, no chronological sequence, sometimes from one branch and sometimes from another, relating only to a specific and limited period in relation to the overall period to which the application for approval relates and so on.  ...  A sufficient evidentiary mass is required, which, depending on its nature - both quantitative and qualitative, and taking into account the quality of the evidence presented by the applicant, will decide the fate of the application for approval.

In other words, in a situation where an employer seeks to refute the claims of the employee-class plaintiff (who presented prima facie evidence of a non-specific violation) and he does so by presenting very meager evidence, the standard of proof required of the applicant-class plaintiff is lowered, and vice versa.  And to borrow Albert Einstein's famous saying, everything is relative, even the standard of proof that must be met in a request for approval.  This is not absolute, but was determined in accordance with the totality of the evidence submitted by the parties to the application and taking into account the information gaps between them, certainly where the employer operates through many branches scattered throughout the country."

26. Further to this, it was also held in the Bag case that this 'equation' applies to the very existence of a group, to the question of the reasonable possibility of a decision in favor of the group, and to the existence of substantive questions that are common to all the members of the group. In our opinion, these determinations should also be applied in the present case, with respect to all the conditions required for the approval of the application, in accordance with the totality of the evidence presented by the Applicant against the Respondent's evidence, and taking into account the differences in information and power between the parties, as they are particularly reflected in a proceeding dealing with wage discrimination.
27. It should be recalled that we are dealing with an exceptional lawsuit that seeks to examine gender discrimination in wages in a broad manner, and not only as a personal lawsuit, using the class action mechanism. In this sense, we are walking an unpaved path; Not only have claims for wage discrimination between groups of workers not yet been heard in the labor courts, but class actions with the implementation of the Equal Pay Law have not yet been heard in case law.  The combination of these two aspects (a class action on the subject of group wage discrimination) also has implications for the burden of proof, especially in light of the information gaps as to the manner in which the operating room operates, as we shall see below.  In the application for leave to appeal (national) 210-08 Anonymous - Anonymous, [published in Nevo] dated May 22, 2008, an application for an order to seize computer material for the purpose of the process of certifying a claim as a class action on the grounds of discriminating against pregnant workers was discussed.  It was held, inter alia, that "as a rule, there is an inherent evidentiary difficulty in a claim that raised discrimination at work, the evidentiary difficulty finds expression in the absence of direct evidence to prove the discrimination, and in the lack of willingness on the part of the employer to disclose the range of real considerations that were at the basis of the decision not to hire an employee, and especially when there are mixed considerations - some of which are invalid.  An examination of the prima facie chances of the personal claim as a class action and of the motion to certify the class action will therefore be made in view of the aforesaid difficulty and the "tools" available to the appellant to prove the cause of discrimination in her personal claim, and in particular in her motion to certify the class action...".  In other words, the rules regarding burdens of proof at the stage of approving the class action, when we are dealing with claims in the field of discrimination, must also be examined in light of the case law regarding the evidentiary difficulty in proving patterns of wage discrimination (Keidar case, supra and Labor Appeal (National) 186/09 Turgeman v.  Israel Airports Authority [published in Nevo] (March 14, 2010).  For a discussion of the burden of proof in class actions dealing with discrimination, see Alon Clement and Sharon Rabin Margaliot, "Class Actions in Labor Law - Have the Rules of the Game Changed?" Iyunei Mishpat 31 (2008-2009) 369.  Regarding the determination of a lower standard of proof in class actions dealing with labor law, see Alon Clement and Ruth Ronen, "Examining the Cause of Action and its Chances at the Stage of Approval of the Class Action," Iyunei Mishpat 42 (2019) 5).
28. On the basis of these comments, we will first proceed to examine whether the Applicant met the burden of proving that if the motion to conduct the class action is approved, there is a reasonable possibility that at the end of the hearing of the claim itself, it was determined that the auxiliary and sanitary works are of equivalent value. Let us preface by saying that according to our approach, the answer is in the affirmative.

Equivalent Jobs

29. There is no dispute that we are faced with two different roles, which do not meet the definition of "the same work" or "essentially equal work". In summary, the snitter is required to transfer the patient to the operating room and help him move to the operating bed, lay him down according to the required position and prepare him for disinfection, bring medical equipment during the operation, assist in changing the patient's position during the operation, and transfer him to the recovery room after the operation.[1] On the other hand, auxiliary work includes cleaning and disinfecting the operating room after the patient's treatment is completed, changing bedding, dismantling laundry carts, dismantling supply equipment carts, preparing disinfectants, organizing operating room carts, ordering equipment, checking inventory, handling requests for blood transfusion during surgery, and transferring equipment for sterile supply[2].
30. In view of the aforementioned difference, we are required to examine whether the two positions are equal work. Section 3 of the Equal Pay Law establishes the criteria according to which it is possible to examine whether two jobs are of equal value: "Work shall be regarded as of equal value to the other, even if they are not the same jobs or jobs that are essentially equal to each other, if they are of equal weight, inter alia in terms of the skills, effort, skill and responsibility required to perform them and in terms of the environmental conditions in which they are performed."
31. Obviously, when both jobs are characterized by similar skills, effort, skill, or responsibility, the task of comparing the value of the jobs is simple. But even when the characteristics are different, it should not be concluded that the works necessarily have different weight (see in this matter Labor Appeal (National) 222/06 Kerem v.  State of Israel [published in Nevo] (26 July 2007)).  In other words, we are not dealing with the identical characteristics of the two works, but rather characteristics whose combination indicates equal weight for the two works, and it is possible that the works involve different characteristics, but their weight and value are equal.  Let's take for example Job A, which is performed on the road and is characterized by physical effort (such as a transport driver), while Job B is performed in the office and involves emotional effort (such as customer service).  The difference between the nature of the effort and the environmental conditions does not indicate that these jobs are necessarily different in value, but rather that it is necessary to examine the weight that should be given to each type of effort and each work environment - each separately or sometimes in combination with other characteristics of the roles.
32. In our case, both positions complement the medical activity in the operating room: the nurse transfers the patient to and from the operating room, and the employee cleans after the operation is over. It is not for nothing that both positions are defined as "auxiliary force" in the operating rooms, since both help the day-to-day operation of the operating room.  It should be noted that from Ms. Finkelstein's testimony it became clear that there are procedures in the hospital regarding the definition of the roles of auxiliary workers and sanitary workers,[3] and the witness confirmed that the job description of a sanitary was found "in my office, in the private procedures of the operating room",[4] but surprisingly the respondent chose not to attach the procedures.  We will first proceed to examine the general characteristics that are valid for both a regular shift and a special allowance shift, and then we will discuss the respondent's claim of unique characteristics in a special allowance shift.

Education and Employment Background

33. Finkelstein was asked about the employment background that auxiliary workers, men and women, must present, and replied that for both positions, there is no need for skills and certificates.[5]The witness also later confirmed that the position of the senator does not require any certificates, and[6] also confirmed that the senator is not considered a medical or nursing staff member.[7] Mr. Feckler also confirmed that Senator is not required to present any professional certificates, but only a matriculation certificate.[8] In this sense, there is no fundamental difference between the two positions, as both do not require certificates or special skills before entering the position.

Physical exertion

34. The respondent claims that the work of the sanitary is very hard physical work.[9] When asked what that difficulty was, Ms. Finkelstein explained that the physical difficulty is "lifting a patient of 140 kilos."[10] We found it difficult to accept this claim, not only because it is assumed that a significant part of the patients do not weigh 140 kilograms, but also because the testimonies indicate that there are patients who can move from the waiting room bed to the operating bed on their own. Finkelstein herself confirmed that "if a person is not yet asleep and can do it on his own," he will move from the transfer bed to the operating room alone.[11] Moreover, the testimonies of the applicant and the witness on her behalf indicate that they are required for a variety of physical actions, and there is no need to elaborate on the nature of cleaning work.  We will briefly detail that the evidence shows that it is a matter of collecting accessories left after the surgery (such as gloves and plasters), removing dirty laundry, cleaning garbage cans, cleaning all the equipment in the room including stainless steel carts, pillars for administering liquids, a bed, tables, computers and screens, cleaning the bed and changing bedding, and cleaning the X-ray robes, with all the cleaning action also including disinfection.  In view of this, the Respondent's argument in its summaries that auxiliary force work is "simple cleaning work" should not be accepted.  On the face of it, this is not an easy physical job, which must be performed with attention to the complete and meticulous disinfection of the operating room.  Therefore, it is not possible to distinguish the physical nature of women's work from the physical nature of the work of the satirists.

Skill

35. Both roles support the functioning of the operating room and the success of medical care, so both ostensibly include a key element of responsibility, accuracy, and working under pressure. The evidence indicates that auxiliary force work mainly requires cleaning skills and organizing medical equipment.  On the other hand, the work of the sentry requires familiarity and understanding of the different types of surgery, as well as the required conduct with the patient in each type of surgery, as well as skill regarding how to lie the patient in the operating bed and provide assistance during the operation to the medical staff.
36. It can be assumed that the work of the senator requires a more complex skill in view of the fact that the employee is involved in the various stages of the analysis.[12] However, despite the difference in the level of skill, no evidence was presented to us to show that different or special weight should be given to this element, which could be learned from the scope of the complex surgeries or the number of surgeries in which the senator was actually required to make use of these skills. Thus, for example, the Respondent argues at length about a variety of actions that the sentry is required to perform before the surgery (such as connecting medical equipment to the patient's body) or during the operation (such as assisting in changing the patient's position), but no data was presented on how often the operations are performed or even data regarding the number of complex surgeries compared to the simple ones in regular shifts, let alone in the case of Katzat surgeries.
37. In fact, it is clear from Mr. Kanbura's testimony that routinely the satirist is not required to do much work during the surgery, in contrast to the way the respondent presents the work of the sanitar. For example, the witness noted that after the anesthesia phase begins, the nurses are not required to stay in the operating room: "...  The boys are going out, they have nothing to do in the room."[13] In other words, during the surgery and before it begins, the nurses are generally not required to stay in the operating room.  For example, the witness explained that in cesarean sections, the sanitizers are not required to be in the operating room continuously because there are other staff members who assist in the surgeries.[14]Mr .  Kanbura's testimony also revealed that the sentry does not wait next to the operating room and follows what is happening there, since when asked whether the sentry is supposed to enter the operating room a few minutes before the patient wakes up, he replied, "Yes, they are reading.  Usually a guy is called into a certain room, I go in."[15] In other words, the senator does not necessarily know when the surgery will end, but turns to other tasks or a rest time, until he is called back to the operating room.  Later, when the witness was asked to estimate how long he had to stay in the room after bringing the patient, he estimated that it was fifteen minutes, and went on to note that "I only help with the simple matter of putting the towels on the sides so that the bath with [---] and all the materials does not slide on the bed."[16] From these words we learned that this is indeed a responsible position, but the way the work is performed is not complex or complicated.  Canberra further confirmed that the sentry is not adjacent to one operating room at any given time, but after the patient is transferred, patients are transferred to other operating rooms, so that most of the work is in transporting patients and not necessarily assisting inside the operating room.[17] It should be noted that the respondent chose not to summon senators to testify in order to determine the characteristics of the position, and on the other hand, we found Mr. Canberra's testimony consistent and convincing.
38. Moreover, the respondent's affidavits presented observations made by Ms. Finkelstein and Ms. Gendelman, which they claim document two sample CAT surgeries (regular fracture surgery and prostate surgery).[18] By means of the observations, the respondent sought to show the degree of skill and responsibility of the senator in comparison to an auxiliary worker, as well as to show how long the work of the two men took in each type of surgery. We will address the issue of time periods below, and we will now say that with regard to skills, the respondent does not specify whether both surgeries are common in relation to the rest of the surgeries, and a reading of the observations shows that these are not surgeries that reflect the routine work of the sanitar.  For example, in the first operation, it was recorded that partial and not full anesthesia was performed, so that the actions that were allegedly required of the snitter at this stage are not necessarily characteristic of other surgeries.  It should be noted that it emerges from the respondent's testimonies that leg fracture surgery is more complex than the other surgeries, both in terms of the way the patient is transferred to the operating bed and in terms of assistance during the operation.  In relation to the second surgery, it turned out that instead of a sanitizer, he was assigned to the position of instrumentation technician, so that the actions performed by him in assisting anesthesia and connecting the instruments do not necessarily reflect the work of the sanitary.  Moreover, even this surgery cannot be an example of sanitary work, since the description of the surgery indicates that there was a complication in anesthesia of the patient, and this led to the performance of additional operations.  It should also be noted that Ms. Marchenko's testimony as described in the affidavit raises doubts as to the manner in which the observations were made and the selection of the surgeries, since on the face of it, the observation was not conducted by the two nurses themselves, but also by the respondent's representative, who questioned the sanitaries but not the auxiliary workers and did not observe their work in full.  The respondent chose not to address these allegations in the cross-examination or in its summaries.  Therefore, the observations cannot be accepted as reliable evidence or with significant weight in the totality of the evidence.
39. When it comes to the relationship with the patient, it can be assumed that communication and contact with the patient is more significant in the work of the sniper, since the sentry is mainly required to transfer a patient to and from the operating room, with all that this entails. However, the testimonies of the parties indicate that sometimes auxiliary workers also help the patients.  According to Ms. Marchenko, who have not been concealed at this stage, auxiliary workers are required from time to time to assist patients who do not want the help of a sanitizer (preferring a woman's help/touch) even in operating rooms.  Finkelstein was asked about this matter during the interrogation, and at first claimed that "the girls do not approach the patients...  Not even when they wake up," but when asked immediately afterwards whether she had never seen the auxiliary workers help calm a patient after anesthesia, she admitted that "maybe I did."[19] Therefore, it is necessary to conclude that in both roles the relationship with the patient is expressed.  Even if this element is more dominant in the role of the senator, this does not necessarily mean that his work as a whole is of higher value, since the said element must be weighed against the other characteristics of the position.

Environmental conditions

40. The Respondent claims that the Sanitaries are required to work in a stressful and intensive environment. Indeed, the work of the nurses is mostly carried out in the operating rooms and sometimes during the operation itself, and it can be assumed that they are required to have a very high level of alertness.  However, the work of auxiliary workers is also carried out in the operating rooms.  Admittedly, this is not work performed inside the room when a medical procedure is taking place, but the facts are required to clean the operating rooms and disinfect them in short, defined periods of time in order to maintain an optimal level of sterilization.  Employees are sometimes required to move between the different rooms efficiently and quickly, as well as between the different floors.  It can be assumed that a delay in the work of auxiliary workers can affect the conduct of the department no less than a delay in the performance of the work of the senator.

Training

41. The Respondent further argues that a substantial difference between the two positions relates to the matter of training, since an auxiliary worker is required to undergo a short training of one month, while a senior is required to undergo two months of training in order to study many and varied subjects. After reviewing the evidence, we do not accept the respondent's argument.  The issue of training did not arise in the respondent's response to the application or in the initial affidavits, but only in Ms. Finkelstein's supplementary affidavit.  The witness does not specify in the affidavit who performs the training of the nurses, so it is not clear on the basis of which data the matter was written, and in any case some of the claims in this context are based on the Ministry of Health's Nursing Administration circular dated December 20, 2020, which came into effect only in June 2022.
42. Feckler claimed in his testimony that a new nurse who had not previously performed the work elsewhere was required, and that the apprenticeship was done by the operating room nurses, including the nurse in charge.[20] The witness further claimed that there was written documentation regarding the training stage detailing the tasks that the snitter learned and his performance.We [21] were not presented with such documentation, and since we heard the witness in June 2022, it is possible that his words are based on the new Ministry of Health circular that was not valid at the time the application was submitted before us. From Mr. Kanbura's testimony, a different picture emerged, according to which during the relevant period, there was not necessarily an orderly and structured training, but when new sanitizers arrived, the nurse in charge would send them to him to explain to them how to work.[22] The witness confirmed that the sanitators had undergone training, but from his words it emerged that this was only a matter of training with the anesthesiologists regarding the operation of the equipment instead of an anesthesia technician (when it is ostensibly a marginal part of the job of the sanitary, which he was also not supposed to perform in a routine manner), and not general and comprehensive training regarding the role of the janitor.[23]

Duration of operation

43. The respondent further argues that the senator is required to work longer in each surgery than an auxiliary worker, and therefore his work is more strenuous. Marchenko's testimony indicates that the time required for an operating room to be cleaned by a single auxiliary worker is about 20 minutes.  According to the witness, the Pollution Department's demand is that the cleaning and organization of the operating room take a maximum of 20 minutes, and that in practice this is the amount of time required for post-operative cleaning.  In its summary, the Respondent argues that this period of time is necessary for the performance of further operations in the operating room, such as cleaning the floor and walls, which is done by the cleaning workers and not by auxiliary force workers, and therefore it can be assumed that the auxiliary work lasts at most fifteen minutes.  However, this claim was not supported by the evidence and is also inconsistent with the testimony of Ms. Marchenko, who referred to a period of 20 minutes in relation to auxiliary work, and even explained that the cleaning workers sometimes perform their work in parallel with the auxiliary workers, and that there are types of surgeries that require a longer period of time than 20 minutes for cleaning the room, such as in a heart chamber or vascular surgery.[24]
44. According to the respondent, auxiliary work in the surgery at Carmel Hospital lasts a maximum of 7-15 minutes. This argument was repeated in the affidavits of the witnesses, but without any detail on how this period of time was estimated.  The respondent presented, as stated, two observations of two surgeries.  To the reservation noted above, we will add that at the end of the first operation, 15 minutes of auxiliary work was documented in the operating room, whereas at the end of the second operation, no observation was made of auxiliary work, but only a general list of the worker's tasks, while only assessing that it was 7 to 15 minutes of work.  The Respondent did not explain why it chose not to observe the worker's work.
45. Beyond that, auxiliary force work in the Katzat shift is not limited to cleaning the operating rooms, and they are also required to organize and clean the equipment, as explained above. The Respondent chose not to present data or to document the work of the employee in the department between or during the surgeries.  Finkelstein also confirmed that the CAPT surgeries take place not only in the main compound but also on different floors of the hospital,[25] but the calculation of the work time by the respondent does not take into account the transition between the different floors.
46. In other words, auxiliary workers are also required to dismantle equipment and not only in cleaning work, and therefore the comparison made by the respondent on the basis of cleaning work that lasts only 7-15 minutes is incorrect. Marchenko's affidavit detailed many tasks that she claims are performed by auxiliary workers, except for cleaning the operating room, such as preparing disinfectants, checking the inventory in the operating room carts and in the sinks area outside the operating rooms, checking clothing and handling requests for blood transfusions.  With the exception of unloading the equipment, the witness was not asked about these tasks in the cross-examination.
47. The respondent also relies on data from HaEmek Hospital, and it was claimed in Dr. Hirshhorn's affidavit that auxiliary force work in the surgery lasts an average of 7-8 minutes and a maximum of 15 minutes.  It was further claimed that an auxiliary worker is assigned to the evening shift for which she receives full wages, and until recently the employee was paid an additional payment for the operations that took place during the shift, but this format was changed so that the employee signed an attendance card for exit each time she performed the work of the Reserve Corps and upon the completion of the work she signed a re-entry, in order to reduce the time periods that were necessary for the operation of the allowance from the regular shift.  It was also claimed that at a later stage, it was agreed with the board to convert this format with an offset of a period of 15 minutes with respect to each analysis of the Zoning Allowance.  According to the Respondent, all of this indicates the short period of time in which an auxiliary worker is required to work as part of the Supply Cuts Analysis.  However, a review of Dr.  Hirshhorn's affidavit and his testimony reveals other facts.  For example, contrary to the claim that attendance records indicate an average of 7-8 minutes of work, the documents show that most auxiliary workers signed an exit-entry for the purpose of documenting the work of the Reserve Corps for at least 7 minutes, but also for periods of time exceeding 15 hours, and it is even possible to locate periods of time of 20 minutes.[26] It should be noted that individual attendance records were presented, no records were presented indicating the new format in which fixed time periods of 15 minutes were deducted for each allotment analysis, and the summaries with the workers' committee were not even presented.  In addition, it was not clarified whether the employees at this hospital perform various tasks for operations other than cleaning the operating room, similar to Carmel Hospital.
48. Regarding the length of work of the sniper at Carmel Hospital, the respondent argues that until the beginning of the surgery, the sniper is required to work for at least half an hour for the various tasks and after the operation for a period of at least 20 minutes, and that in some of the surgeries he is also required to assist during them for about half an hour to about an hour and a half to two hours. We are unable to accept this argument.  We will return again to the observations on which the Respondent relies and note that from the observation regarding the surgery of a leg fracture emerges the following data: From the beginning of the documentation until the beginning of the anesthesia stage, about 25 minutes passed, of which about ten minutes the sniper was observed waiting next to the patient's bed during the questioning by the anesthesiologist.  The anesthesia stage, as we have explained, does not reflect common surgeries.  Afterwards, the satirist is required to do about 15 minutes of chores in the operating room, and about 20 minutes after the end of the operation.  In other words, it is about an hour's work time.  Throughout the pleadings, affidavits and summaries, the respondent reiterated and emphasized the type of surgery for a leg fracture as exceptional, since the patient cannot move on his own.  Therefore, this observation does not necessarily reflect the other types of surgery.  In the second observation, all the tasks were performed by an instrumentation technician, so that no conclusions can be drawn regarding the duration of Saniter's work from this surgery (this is beyond the fact that during the operation there was an anesthesia complication and that after the operation, the observation editors chose not to record the duration of the various operations).
49. The respondent chose not to summon a senator to testify in order to support the data claimed by her. On the other hand, Mr. Canberra was asked about his presence in the room during the surgery, and explained that in practice he is not required to do so except in exceptional cases (emphases added):[27]

Q:         You're also sometimes during a section bottle replacement surgery, right?