good morning my name is skip spear i'm appearing on behalf of defendant gabrielle of the trust you i'd like to start by asking you to take everything you just heard in the past thirty minutes and kind of push it back into the genie bottle because although this is good someone close the door of essentially the same actors involved but we have a very different record yes the record in this case is based entirely on plaintiff's allegations have you ever been there before not that i'm aware of and that is not an allegation in the record well i was one of the record of the facts in the record the facts in the record do not contain i think he was transferred to the custody of teller county pursuant to state statute and then five days after being in the county's custody committed suicide were those facts a good returns of the facts here with at the time he was in the hospital what is the nature of the examination to place it with a competency evaluation and how much time did the doctor spend with the pain well it depends on whether you are referring to  to go to trial a guess you can't consider here but what would show is that as the attending physician dr trustees role was to oversee his team of health providers because they were men and sort of not for any diagnosis for self but to summarize what it what is the signatory specialty dr grimmett is a psychologist and so when a just for general conducted by a team of doctors correct the evaluation is conducted by a single doctor but while you're at him half so well just a second and that single doctor in this case was a trust  addition the allegation that she spent seventy five minutes with him i understand the term thirty five minutes was thrown around earlier but it's seventy five minutes in the amended complaint she did not have records regarding his history and should not speak with his family or is treating at the district court level so no charges are brought against the psychologist that's correct and although there were numerous defendants regionally in this case she was not a name should the doctor who talked with the family or sought the medical records and receiving treatment while there but not for a specific purpose of getting treatment well it was a competency evaluation and threats that's that's why he was there yes didn't discharge report say something about the struggling and not being suicidal that's correct and to make that determination wouldn't you need some medical history from previous records discussions with the family so forth why why why why was how why wasn't this deliberately indifferent to fail to do that if you're going to reach that kind of a conclusion i realized the purpose of the he was there for i understand that but but it's the finding in the discharge report that he's not suicidal that seems to be the significant finding here and what's a strong if if if the doctor didn't have that kind of background information and spend seventy five minutes well just go back one step i would point out that this whole discharge summary and allegation that dr trusts you made any sort of diagnosis isn't in this well then i'm i guess i'm not connecting all the way them because if the claim is that by signing the discharge which was not suicidal why isn't that a failure to provide adequate care in the sounds of not having the kind of medical history to quick care is an objective negligence standard which is malpractise now farmer brennan was very clear that the reason you don't apply an objective standard like that to deliberate different cases is because that's what's the court  or what the holder liable constitutionally for mystical in a suicide on the basis that she provided inadequate care that she provided an inadequate evaluation qualified immunity or because there she was mr leno left doctor trustees care for five days it was intel or hundred calories custody for those five days before he committed suicide once he left her custody she had no way to evaluate his mental state she had no way to put any sort of suicidal suicide prevention measures into place she was just mentioned he had no role in his care anymore and what this  brings to the forefront is the important issue of janet government actor be held liable for the suicide of whether it be a convict deal or just a pretrial to me like mr villein when they're outside of their custody  just ask you if you argue qualified immunity in district court and the district court so that there was not qualified immunity didn't you concentrate your argument in district co the clearly established law prong of qualified immunity i would say no and i'll sort of explain that and while i'm explaining this i just want to say that i think cox the galena  qualified immunity and as the cost case put it the defendant or the plant then has the unique receiving burden of attempting to out of work on both prongs in their response a brief now in the opening brief dr minus arguments was in her reply brief and i'd also point out that there's no prejudice in considering these arguments regarding deliberate indifference the first problem because plaintiff had the opportunity to respond to it both to doctress use of objections to extent their factual allegations called fighting unit can be decided as a matter of law and therefore even if it was waived the tenth circuit can consider it from the getgo what do you understand the clearly establish the claims clearly established law that your client is alleged to have violated well in their briefing let me repeat the question what do you understand the claim violation of clearly established law that your client is alleged to have violated you would answer the question first explain all you want help me a little i think the allegation is that she was deliberately indifferent to his medical his new sakes sufficiently serious psychiatric disorder can't simply say that it's clearly established that a detainee or criminal has a clearly established right to not be to not have a government actively delivering different their serious medical needs that has to be fact which is also i think the hol deviation from the standard of care her failure give prior medical records her failure to speak with this treaty was a physician well first of all was the defendant referred to the doctor here for hospital for a competency evaluation are you saying that the judge is also saying off by the side all my that what's wrong with them no i don't think that's what the judge does i think as a medical facility because remember is an inpatient he's not it's not like you to come in and out of this facility so the facility still has a duty to give him medical care because he's in custody so they still have the duty to provide that medical care and so that's the context of dr fraps who's karen this is this is in this instance is that providing medical care to during the custodial parent exactly and the issue with dr presto is essentially she went too far then with respect to liability that you are relying upon it's the reckless deviation from medical norms is that when she established as her medical opinion that she have to forsee that's going to be relied upon whe symptoms of a heart attack he does nothing and i think how is this case i think you're right in terms of that fact but here's why i argue that it's really on point here it's because the nurse in the made a case was just ignore you know simply ignoring these obvious signs right and we have to analyze for standard of care as a nurse right she's in the jail facility she's walking you know proverbially walking by the cells right in this person's complaining of these problems for a doctor like dr  has the ability to get the medical records to talk to the freaking physicians to do all that that the four things that we allege she did that for the reckless deviation from the standard of care in this case and i think that's what it was the similar it's the deviation guess i'm i'll plead ignorance that's exactly what they are in terms of if you're citing the defense for tolling i would just assume that the district court wasn't citing the major dissent for it they clearly established law that that it was being violated there that  when the district court adopted or you know found that there was no entitle me to qualified immunity in this case is because if found that the reckless deviation from medical norms is the clearly established law and i think when we talk about indifference to it in that serious medical need is a clearly established constitutional right and so when we talk about the seriousness of the medical made it's the paranoid schizophrenia that leads to the suicide when she has been through deliberate and different parts seems to me to require in maida urge urge the court the majority to hold that quote reckless deviation from acceptable media medical norms satisfies the subject component a deliberate indifferen a and look at some of the facts of maida because i think made it is if it's really a factor it's like i like any of these all identity cases right are very factually drive it in terms of who knew what when and i think when we talk about the made a case it's saying well under the farmer versus brennan standard you had subjective awareness that there was a problem and then doing nothing about it here what we can still argue is that one  essentially knew that he was had access to these medical records now while she denies accessing these medical records essentially that's the issue kind of the issue here is qualified immunity is not supposed to protect the plainly incompetent when the qualified immunity doctrine was created by the supreme court that's what it was talking about that the public policy of protecting people who are trying their best but not to protect people who are intentionally violating the law to reply only include counsel how do you square your factual analysis with the supreme court's latest decisions to narrow the clearly established standard to particularized facts i think about a serious health condition and made it was you know heart attack in this case it's the rest of society or paranoid schizophrenia that when we have serious serious health conditions we have a duty to inquire you know essentially this is how did how did alina at the facility was a competency evaluation because the competency evaluation the sense from the fact that a paranoid schizophrenic issue with that type of diagnosis is that one of as this case before we can say there's no qualified immunity i think we have to square the holdings of the supreme court with the fact that when we do the qualified immunity an analysis now we can step kind of skip steps no longer are we kind of compelled under the two step korea to you know figure out the right and then figure out whether it's not clearly a status of cancer you or your case rises and falls on that fair yes so i think so we begin with that analogy yes i think maybe maybe it is the case that we point to as providing that the the warning for dr progressed to as to what would create constitutional liability in her case and i guess with my final time