which this appeal is taken at the outset what we hear before the court today to argue is that there is indeed a material question of that for a fact finder to decide catheter changes done months dr news deposition testimony supports the idea that he was aware of these monthly catheter changes that he was responsible for day to day care of patients and that it was his responsibility to authorize prisoners to be allowed to go offsite from the prison to go visit specialists who are properly equipped to the real issue here is whether there's any evidence that this doctor dr knew is responsible for personally responsible for not changing the catheter monthly as w required we don't allege your honor that he was personally responsible for changing the catheter what we do alleges that he had oversight and authority to order the catheter changes to be done and he did be liable just as a supervisor over from the health units that evidence is that the nurses were responsible for following the doctor's orders right that is correct your honor but we're not stating that she has the authority to order that those changes be done so i guess the analogy i would i would make in that argument is that as an attorney i need or you know be responsible for court filings being done on time and if i were to say well knew that the and catheters were not being changed on schedule and that he was responsible for that not being done for not rectifying that situation yes your honor in it and i don't that that's what the district up said there was insufficient evidence of both of those issues because you have to step it is personal liability and we respectfully disagree we believe that he did have a subjective awareness and that mr knew a legend in his deposition testimony that he repeatedly told dr newman and others that his catheter wasn't being changed in a timely manner and dr new also reviewed regular reports that came back from offsite specialist indicating the catheter needed to be changed so i think we have a pattern of conduct and which indicates the doctor knew was aware that the catheter needed to be changed that my that care and that he was both a staff physicians and that at some point in two thousand and five he was but if but if it was being treated another doctor why wouldn't you if some doctor was assigned to be newell's doctor why wouldn't newel complain to that purse rather than to the top guy well i believe first of all your honor that he did complain to other people other doctors and nurses that and what did they do the record shows that the catheter wasn't changed so liason is suing them for what he did your honor and he's suing other doctors are just nurses there were other doctors physician's assistant and i believe also the warden and somebody else at the prison was not a healthcare professional well they're all defend them so they've claimed they were your honor but they were dismissed or you norton they were but the what happened to them they were dismissed from the case pantera lee my client abandoned his claims and why we felt that there wasn't enough evidence to show that they were indeed liable for deliberate indifference let that you take their depositions their depositions it's do we have any deposition testimony or other evidence to demonstrate who was responsible for scheduling these monthly visits to have the catheter changed will there in lies the crux of the situation or honors that  health care has a somewhat decentralized health care regime at the prison so when you look at the deposition testimony as a whole it's hard to really pinpoint nobody really says who's responsible for what the only dr new that doesn't tell us who is responsible for scheduling these monthly catheter changes that that's what the crux of the claim is that he was supposed to be getting monthly catheter changes he didn't get them that caused pain and suffering and that doctor knew w deliberately indifferent to that but that presupposes that doctor knew was responsible for scheduling these well to that point your honor he was the one who signed off on our site consultation forms and maybe order right but that's neither here nor there as far as this claim is concerned you know the fact that he had authority to authorize this inmate to be taken off the ground for medical care doesn't prove anything what we need to know is whether he was responsible for scheduling the monthly catheter changes and fail to do so with knowledge and deliberate indifference i can't state that there was a written schedule that would be produced at the prison what i do know from reviewing the evidence is that dr knew i see that amount of time like you can and well the question was asked you presumably an answer was desire b as i said i don't think a schedule i'm not aware of a schedule for the catheter changes being written or producer who is responsible for that is my question i would submit to the court that based on the evidence available in the record dr new actually ordered that but what does the evidence say about where the responsibility rests for actually scheduling these on a monthly basis i don't know that we have a smoking gun like that and saying you know that indicates do we have he's the the primary person that review how many physicians are there he was treated by four or five physicians know how many are there in the in the medical unit of the prison i would guess six so the combination of all of these shows the deliberate indifference that that they had for him when you go up a step and look at dr who everybody down in the trenches were just treating him as they would come in there's a lot of hospital call it comes in he's treated you know and the university of illinois circle campus said that they were upset that he was being treated with so many antibiotics just not what should be done they should change  catheter more so that he doesn't have to distinguish between malpractise and deliberate indifference on the part of the so maybe new isn't a very good supervisor well nobody listens to  a there's a there's a movie they partnered the seven a movie supposedly passes supposed to suppose when he gets a complaint from newell he goes to one of the doctors or nurses and says take care of this but he doesn't follow up and it's not taken care not to be malpractise right well i think it's deliberate indifference because it happened so often and so many occasions with so many issues promoted to the head of the department after being a preposition after after being a treating physician for a number time or a number of years he was them promoted to the to the head of the our so there was a time when he was was treating newell and a later time when he's the run in medical i believe so yes and he did he did treat in a will and he said in a deposition that he was asked did you ever change catheter so he can't remember ever changing his captor it was mostly done by nurses and and lower level staff which is direct contradiction of the university of illinois circle camps as it had been changed by relatives he knew that have to be changed by  could have sent him to you i see on him on a monthly basis he's the guy the buck stops with him he's the he's the head of the department put it on there he didn't do it he knew that our client was suffering he had scars  morning again i'm michael cherish and i represent dr new i don't think there's a dispute that too new is actually responsible to change catheters said he was i don't think that there's any instance that's alleged that he improperly changed the ca and the doctor knew as the medical director for the health care unit at texas his responsibility was to review and approve recommendations from outside consultants in this case mr newell he did so in june of two thousand and six other people i believe a counsel was referring to in terms of you rather than really there their argument as to what does dr new know and when did he know it hinges on two issues first i believe there's a dr new clearly testified you never saw it he says when i see something from an outside institution i knew my initials would be there they're conspicuous he give examples of that in the record we don't even know that that report was part of his prison medical records it's clearly from you i see but there's nothing in this record that indicates it was sent to the prison and became part of his chart but what we do know is he didn't see it because his initials a plenty of gives several instances of his deposition testimony this is from the plaintiff's appendix eighty three three eighty six the doctor who was present wants when a catheter was changed there was no problem not that he did it but that he was one of multiple people who  present when it was done once and that on other occasions he may have remarked to dr you all my catheter hasn't been changed not that there was a problem not that anything was wrong but it just hasn't been changed w response you were to change that's what he did he said ok change it because that was his responsibility in the chain of command that's his responsibility as medical director there is nothing in the record in there is no testimony there's medical director at dixon during the relevant time period he is responsible personally for the individual care of every single patient just like the head of staff in a hospital as he explained that in his deposition where he said i director yes i treat patients on occasions but my responsibilities are primarily administrative referring people out for outside counsels like i did with this patient seeing that if something is brought to my attention i will look into it in this case when something was brought to his attention he did he did his job and he was not to would really indifferent unless there were other question k thank you missed those changing further from the rather just to follow up on this issue of dr news authority you know direct relationship as a health care provider to mr newell dr his own deposition testimony on page ninety seven states that he was responsible as a staff doctor for day to day patient care and then when he's promoted to medical director he also stated he continued to be responsible for the c irresponsibility is not the same as deliberate indifference poor performance of executive functions i would submit your honor this was an executive function in light of the fact that mr new alleges that he had regular interactions you know health care patient contacts with doctor knew and that he had but knew never having changed a catheter is not the person to do it himself so it's delegation and maybe he delegates to the wrong people or he doesn't follow up and song that sounds like malpractise rather than deliberate indifference your honor i would characterize it as indifference for the reason that he was repeatedly told it wasn't being changed contrary to his orders if that were the case that he did regularly order the monthly changes and you were told by my client it's not happening then he would be deliberately indifferent indifferent if he failed to take any action other doctors who were dismissed could you compare the amount of contact they had with the plaintiff in this can trust a doctor and know who and i'm not talking about it's a middle when he was the medical director but i don't know if i can give you percentages your honor because well he was his doctor for a while the onsite doctor right here right tending physician and i don't and then there was a series of others after he became the medical director that's my understanding yeah so i  guess i'm just trying to distinguish his contact with versus the others who are no longer in the case and now that's a medical director both in and the attending capacity shareowner i don't know based on the fact that doctors are coming and going at the prison i'm just moved from the depositions that you've taken i would say that there's no cause you know jarring contrast between one level of interaction between you know former defendant and shows their conduct versus dr drew's conduct during that period of of tending to the plaintiff the evidence we're relying on is that mr newell made these allegations that he