a plaintiff your honor i'm here today on a deliberate indifference case and what i'm asking the court to do is find that seizure disorder is a serious medical need it's a medical need that needs to be met with the appropriate medical attention in the district court the the district court held that a seizure disorder is not a serious medical need he likened it to a minor condition that doesn't necessarily have to be diagnosed or met with life sustaining  sustaining drugs i think that the court should make it clear that a seizure disorder is more analogous to say heart disease or diabetes and that life sustaining medication in this case the seizure medication was necessary in order to not bring on the onset of excuse me bring on the onset of seizures mr mccain i mean i think that the case there's a chronology here that's really important in terms of our claims of deliberate indifference he was booked at the jail on saturday night at the time there was a medical form that was filled out in the form identified that he had a seizure disorder this form was put in a bin to be picked up by the medical personnel that is not disputed that form was found in discovery we know that the medical personnel had this for nothing was done he didn't he on the form he identified that he was taking tegretol for it to to manage the seizure disorder and that he didn't have his medication with him all the rest of saturday night and sunday and then monday he was the first oh go ahead you know i was just going to ask i mean even if you're sort of saying that seizure disorder is a serious medical condition even if we can see that you have to thought the form i mean she said in her position that she believed that he had his medication at four pm on the day of intake that he would suffer no adverse consequences if he didn't get his medication on monday so until monday so i'm not quite sure how she can be deliberately and of her well i guess it takes a step back so the serious medical condition is the seizure disorder and that we agree with in the next question becomes ok how do you appropriately deal with and treat that serious medical condition is it if it i mean nobody disagrees that if it's an acute issue like someone is bleeding or etc you take them to the hospital and do that that's not what this case was he's coming in with a known seizure disorder so then the question is how do you appropriately deal with that disorder now i think we have a couple of white the question like this is the negligence great failure to adequately treat would negligence you have to show something more than that we do have to show something more than negligence but i think that seizure disorder can be analogized to cases i mean this court has issued opinions regarding conditions like heart disease or regarding conditions like diabetes now these conditions the unifying factor is that they in order to be treated they have like sustaining medications that can be issued for that and i our argument is that a seizure disorder falls within that category of types of diseases and types of medical conditions that there are these life saving life sustaining medications that have to be provided in order to not have the dire consequences you have when you cut off medications and going to your second question kind of segue into that which was we have to prove deliberate indifference and bishop is saying and in fact all three nurses have testified that they didn't think that this rose to the level of necessary medication that it could wait until monday until the pharmacies opened it was something that they had to get on an emergent basis well that's also that comes out to a factual dispute because the nurses  to provide medical care at the facility at the time and both of them dr stomper gave really clear testimony saying no a seizure disorder is a serious condition we have a protocol in place that says that if someone comes in with this disease  they're supposed to get x y z treatment we're supposed to get a call we're supposed to get a console with a physician and that just didn't happen in this case but look you have to still so evidence or  mr mccain and so i guess the focus for you know this court and and larcenous question is really you know the subject of prong if you can see we can see that the objective component has been met there seems to be an absence of any evidence in the record that these three nurses have this sort of  what it is yeah ok so we're going to always have the soft serving testimony of the defendants they're going to say we didn't know that this was a serious need we didn't know that they needed this medication we didn't have the you know the reckless disregard the grossly substandard provision of care that rises to the level of a deliberate indifference and now our issue in this case where is twofold first we had to show that they had the requisite knowledge that they even knew that mr mccain had this seizure disorder we rely on this medical intake form that stated that he had the disorder and i was given him put in the bin for medical to pick up but we don't know if anyone read it we don't know if anyone read it but there's actually precedent from this court in this clue six school  a be wells case from two thousand and three and in that case your honor and me was transferred to a facility to get medical care for different facilities the doctor on the on the form transfer form it stated that he needed to be seen him urgently for a neurological consul the doctor didn't see the patient for like i think twenty or twenty five days and the doctor in that case just like the nurses here argued that we didn't see the an emergency basis and the fact that you had this form in the ordinary scope and ordinary course of business you can get reach the requisite intent that you knew that this person was posing as ravenous in that case of people usually looked at those forms yes there was the but that was the problem here or special testified yeah you should look at forms but he came in she looked at the forms at the beginning of her shift and he didn't come in the beginning of her shift so i mean i get i understanding i think with that case says and it makes sense but i'm not sure it makes sense here where her point is yeah i look at the forms but i look it up at the beginning of the shift and you can come in we have three days we don't just have like the beginning of the ship we have all that night for her shift we have the testimony of i think with amy and one of the other deputies saying that it was their practice to come down multiple times during the shift to look at the form then we have the next day and i think that  on duty on that day and then you have the the third day when nurse bishop was again on duty and that's when mr mccain supper of suffered his first seizure so in terms of when they got this information on the form when they could to have had noticed this condition we had we don't have just this one moment in time we have three days so you know what just in your case gets maybe a little easier after the first seizure and terms because by then everybody knows what it is and that he has the problem you mentioned earlier that there was testimony that there was a protocol at this sense institution where if there's a seizure you always call the doctor is that true yeah i testimony and he was the doctor who according to his testimony he was in charge like he developed these protocols developed the guidelines that the nurses were supposed to follow in terms of how we're supposed to get information regarding in me or detainees medical conditions to the appropriate medical provider so in his testimony he said that yes there are certain things that we consider urgent like  nurses to follow say under questioning so he's talking about the various starts with it if it inmate has a seizure while at the jail is that something that is usually conveyed to the jail doctor answer not always ok but sometimes it is i would say more often than not and it goes on last question a seizure would be an urgent medical condition answer not necessarily that's so i'm just having a hard time we don't have a protocol of the jail you're relying on dr strong for my reading of dr stromberg testimony was that the medical staff was told to report seizures they were told to report chest pain trouble of breathing those kind of things are considered urgent well this is after he has the seizure but before and after he has i thought we were talking about the initial claim before the first i think dr stronger was talking about the overall procedures because even though even though there was a note that said that he was contacted for the tegretol prescription after the first seizure he wasn't because he was on vacation so his testimony most of it was developed like he's talking about the general procedures that are in place and at the hospital i mean at the at the jail and i will keep the rest of my time for a bottle thank you  and not use up all of my time as a release of this case i think the court has already hit the key issue on the nail on the head when judge larsen asked about the lack of proofs under comstock and farmer as i argued to judge cleveland the plaintiff must show quote the official being sued subjectively perceived facts from which to infer substantial risk to the prisoner nurse bishop did not there's no such evidence in this case that she perceived any such harm secondly that he or she did in fact draw that inference again no facts thirdly that he or she disregarded the risk again no facts just to respond to a couple seven am morning shift of march the fourth they were there after the first seizure when pay when the prisoner had been moved closer to the sheriff's thirty minute checks and had already been evaluated unfortunately had a second seizure so under the case law we said it also under rule twenty eight g six circuit rule the court can deem this is appropriate authority under butterly ashen woodhall those are very analogous cases to this case which i believe strongly support our opinion and finally plaintiffs cited in the trial court again here to parsons and quickly persons involved seizure medication that was available at the jail quickly involved contraindication were  seven am on monday and asking had the unfortunate she was actually not a nurse in this unit typically she would fill out forms later in the week and assisted in evaluating prisoners later when the second seizure took place she was called along with her schiemann and came to the scene and actually it was nurse schiemann who did most of the evaluating at the time of the second seizure and again at that point the prisoner is sent to the jail etc one final point and you hit on it your honor is the protocol discussion there was no protocol produced during discovery that required you automatically contact the physician it cetera and judge larson has hit on the key testimony from what i believe was a very self serving testimony of dr stromberg who wanted to get out of the case and somehow was dismissed from the case shortly after that testimony so thank you very much like you were but though you have your rebuttal you your honor dr stromberg testimony was not self serving and the reason that we dismissed him from the case is because you know in the first five minutes of the deposition we learned that he was actually on vacation at the time that this incident occurred so she's got this culpable state of mind the culpable state of mind comes from two things first before the second before the second seizure between the first seizure and the second seizure when the nurses come on shift the first and all three nurses testify to this the first thing that they do is they have a meeting between the person that they're relieving they talk about what has happened during the shift if there's anything that needs to concern them etc and they're told and i mean  testified yeah we would have been told about this the fact that mr mccain had had a seizure and that he had been placed on this quote unquote seizure protocol but at the time the medications already been order right the after the first seizure  hospital and i think that this like what would be a good counterpoint or for oil to like when we're looking at their conduct and saying does this conduct arise to the level of deliberate indifference last month this court issued a case winkler versus madison county it was also a deliberate indifference case looks slightly different than the issues presented here because here we have a known seizure disorder and we're looking at whether the treatment that was provided was grossly substandard or not in winkler the issue was no situation however there was a claim against one of the nurses and in reasoning that the the plaintive had not met the deliberate indifference standard the court analyzed he said while the nurse  lpn she gathered the relevant information regarding the condition she provided that information to a qualified medical professional and then she followed the directions provided by the medical professional those three markers are missing in this case nurse bishop did not call a doctor she did not take mr mccain's vitals she did nothing except put him on this the seizure protocol which was basically saying ok watch him every thirty minutes nothing was question is that they would have had this information from bishop when they took over for that shift so if they had this information and they knew that not it he's like a baseline markers had been met in terms of providing responsive cared for a seizure i think that you know that this is this was the true the medical condition and this was how it was treated and it was grossly some standard in that started with deliberate indifference claim and here ok thank you for this work we certainly appreciate your arguments