good morning your honor and main please the court my name is running up to and i represent michael getty this case started with an appointment about a hearing aid and ended with mr gaddy suffering excruciating pain as a result of the actions of the defendant d at the time of this hearing an appointment mr gaddy had in place medical treatment issued by five different doctors for a shoulder injury and these doctors had all ordered all put in place orders called chrono as the preventive mr gaddy from being handcuffed behind his back which caused him to suffer shoulder dislocation and pain and this treatment was working at the time of his hearing aid appointment mr gowdy hadn't suffered any recent recent shoulder dislocations and he had no reason to expect the sixty's successful treatment would change yet at this appointment dr adam ended this treatment without examining mr gaddy discussing his condition with him or viewing any records that showed why this treatment was  she saw that there was a cron o in effect why why did she why did she just continue it she just continued it based on review of her declaration is that she just continued it based on review of medical records ok and what what was she response supposed to do she's supposed to just leave it in place is there presumption that it stays in place until something else changes or is there presumption that goes away until it's affirmatively required well there are a couple options she could have taken she could continued the cron o she could have temporarily continued it which is what another doctor did after mr got his shoulder dislocated that's what dr adam herself did when she examined mr gaddy in september but does the credit have to be renewed periodic doesn't expire of its own it's a permanent cron o he had a permanent cron o in a permanent cron o my understanding is that it does not need to be renewed there is evidence that it is periodic late review i thought the regulations provided which the doctor reviewed the criminal in this instance yes she was required to and we don't dispute that she was required to entitle to examine and review the necessity for the crime but what she was not required to do and not permitted to do was to discontinue the cron o having no idea why it was issued in the first place so counsel are you saying that her actions are gross to the level of deliberate indifference as opposed to negligence yes your honor because because she did not take these very basic steps of  determining why the crown was issued reviewing records about that would indicate why it was issued examining mr gaddy discussing his condition with him and seen what his symptoms are and why this cron o had been issued it's not clear that any of the records she reviewed even discussed his shoulder at all and so that feeling to investigate such an extreme lack of diligence on her part is more than negligence or medical malpractise and in the cases that this court has held that it doesn't rise to the level of deliberate indifference to say that even gross negligence doesn't rise to the wilbert indifference correct so if everything you just described while it sounds bad sounds like negligence and maybe she the risk can be inferred from the fact that it was obvious or the subject of knowledge of the rest can be inferred from the fact that it was obvious what was obvious the risk was obvious because these prior five prior doctors had put into places medical order and there's evidence that these medical orders are only put into place when doctors determine they're necessary and what was obvious here was that she had no basis for reversing those decisions she had no knowledge of mr got the shoulder condition right  have could it could have been less obvious to her by the way that mr getty carried himself up by the way he walked into by the way he he moved his arms even if even if she was only examining for a hearing aid someone who had free mobility might  they no longer needed the accommodation well she hasn't relied on in her declaration she doesn't state that she relied on mr gatti's gate or his appearance or any of these things she has suggested that she relied only on these records from after his treatment was in place but all of those records demonstrate was that his treatment was working and he had the condo in place and he hadn't suffered any treatment it was just a crime there is no the record doesn't reflect there was any treatment is a form of treatment it's a form of treatment while the doctors say that the doctor relied on the fact that there was nothing in the medical records or medical treatment for the shoulder x rays of the shoulder or any treatment for shoulder dislocation so why was she deliberately indifferent in relying on those portions of the record because those records were only from a time that the treatment was in place and she did not have any records from before that time when the treatment was not in pla what treatment what treatment was getting for a shoulder his the chrono was the treatment at that point but that's not that's not the way that we usually use that phrases as in the medical sense i mean he wasn't he wasn't he wasn't seeing a physical therapist he wasn't getting pain medications or  shots for arthritis he was getting steroids he what he had in the past receive those forms of treatment and in october this court has held that lower bunk cron o is a form of treatment so treatment can be refraining from doing certain things that can injure or cause substantial pain to the to the plaintiffs are forms of treatment under this court's precedent and under other court's precedent as well what was the deliberately different for the what the doctor to say because there was no affirmative treatment chrono was no longer needed why would that be deliberately different if she relied on those portions of the medical records because by not performing even a basic investigation these things were viewing medical records from demonstrating why a treatment is in place and performing examination are basic requirements of medical care these are things that when we go to the don't show negligence but how does that show deliberate indifference because these things are so required of them of basic medical care in these cases in the cases where courts have found things to be to only rise to the level of negligence that they have all performed these actions their actions have been based on review of the records treatment of the patient and courts of consistently held that when a doctor performs a cursory evaluation or cursory interview or no examination and prescribes treatment particularly when they reverse a prior course of treatment on that basis and that gives rise to a genuine issue of material fact about whether they did so consciously disregarding the risk that reversing a park course of treatment based on no foundation would cause substantial harm to the plaintiff case from this date and that date only correct because that's when she took the action that created the risk of harm in september she says that she when she examined him later on she said it was obvious that he had been you know hitting the gym that he was very muscular in his upper body but he had seemed to have no restrictions of mobility i mean is there anything that we can that we can infer from what she saw in september that would relate back to what to june it seems to me that those those kinds of things that is being very muscular in your upper body doesn't just come about between june and september well especially while he's complaining that he doesn't have a car but at the same time she she continued his cron o as she actually was very attentive i mean i the doctor was all over this once he complained that raises an summary judgment and the court has to be the light in the most favorable to mr gandhi and that raises an initial material fact about whether she thought that treatment was necessary whether that examination the post hoc examination was an born in may it please the court my name is trace my reno i'm with the attorney general's office and we represent the defendant dr adam in this case dr adam urges the court to do one of the other two things first of all affirm the district court's ruling granting her motion for summary judgment because there was no evidence of deliberate indifference she promptly discontinued a waste chain cron o because there was no evidence that he had a preexisting greatest position to shoulder dislocation and second even if the court were to find that she were deliberately indifferent or violated mr getty's if amendment rights she should be deemed qualified lea immune because any reasonable position in her position at the time would not have known component and the subjective component of the objective component must be deliberate or the must be deliberate difference to a serious medical condition patient shows the medical condition a serious medical condition by demonstrating a medical condition that  significantly appears his daily activities or that causes chronic pain or discomfort or would be one in which a doctor would comment on or treat but the record doesn't demonstrate that evidence  the chrono in place if there was no serious medical that you wanted there is discretion for physicians to issue a crime know based on subjective complaints of the patient as in this case even though the record demonstrate elysee for a physician to issue a medical cron o doesn't necessarily mean that it's unlikely necessary and then that's why the chronic continued before june two thousand and thirteen when dr adam had to renew the cron o because he had received a new hearing aid implant if you make the argument in the district court that there was no serious medical need your honor we did and in we do believe that based on her review of the medical records that during the period of time of more than two years there was no treatment for his shoulder and his shoulder condition there was no x ray to show the condition and thus it is undisputed based on medical opinion from dr sayer and dr adam that somebody with a preexisting predisposition to shoulder dislocation condition would have frequent and repeated requests for medical treatment would have frequent have repeated complaints of pain but that's not present here i thought the district judge just assumed the object of prague and moved directly to analyzing this under the subject of problem and then ruled in  the defendant's favor that is correct your honor that the court did make that assumption based on the record before the court but we still made the argument and made the argument here that the objective component had not been so even taking the facts in the light most favorable to the plaintiff in this case you think there is there is no material issue of regarding serious medical your honor that is our position based on the lack of evidence in the  record the medical records reviewed by dr adam for more than two years the fact that there was no frequent or repeated requests for medical treatment about his declaration nor that no your honor we don't ignore that but excruciating pain and showed that this dislocation why isn't that enough to raise a mature issue and to the extent that he's connecting his shoulder pain with a predisposition for a shoulder just location i believe we argued that he's not qualified to make that sort of a medical opinion in addition when he did but he knows your body better so a person is always qualify to declare what pain he or she is having and but we do have medical opinion that states that pain at the ac joint does not indicate a predisposition to shoulder dislocation let's assume at least one member of the panel disagrees with you regarding that issue where do you go from what other medical records that she had in front of her size the general she had more than two years of medical records that were devoid of frequent and repeated requests for medical treatment or medical pain there was no shoulder there's no diagnosis of shoulder pathology that he had a predisposition into shoulder dislocation there was no x ray indicating it's true that she would have known that he had a predisposition for shoulder dislocation if it were in the records that she was but that's what i'm asking what was in the records that she review well none of the none of that information that there was a there was no x ray related to her shoulder predisposition going to know what the reason for the chrono was no not in the records that she reviewed there was no x ray been explored why the crown was issued in the first place well there was no medical evidence in the records that she reviewed if because it's undisputed that a person with a predisposition to a shoulder dislocation condition would have those frequent requests for medical treatment and would have those frequent complaints of pain but that's the record is the medical records were devoid of that there was no there was no such request for medical treatment no frequent what about the existence of the crown in the itself doesn't that indicate something that at some point in time a provider head determined that the criminal was necessary why should she have been required to explore them for their wealth in fact she did when she reviewed those medical records for more than two years that she reviewed in addition during the june bug what the those records tell her about why the chrono was issued well i mean i don't believe that it revealed the reason why it was  issued when that be important to know before discontinuing and not necessarily you're on a she did she was in the same room with him she is a trained physician she did have an opportunity to review to look at mr garrett he did make he stated that there was no complaints of pain when she met with him in june in addition going back to the subject of component after that incident after the june medical appointments mr gaddy reached out and submitted a request for medical services and  and in response and nurse was sent to his cell front she was there to provide examinations so it could be triaged but he refused to participate instead he wrote to dr adam and she immediately i think the very next day responded to him and  she could have done that i don't believe that she did that during the examination but that seemed kind of like the logical thing for a physician to do if you walked into a doctor's office with a sling on your arm the doctor when you think the doctor would say why do you have a sling on your arm broken is a dislocated shoulder sure absolutely but in this case he made no complaints of pain he told her i'm not in pain during that examination and then when there's a crown of force or waist chain chrono which is somewhat unusual given the circumstances in the prison and then she reviews the medical records that show during that more than two year period that there is no frequent requests for medical treatment no complaint of pain no shoulder diagnosis then that  review medical records before the wasting chronos that she did observe that he was not in pain she did not look at any medical evidence that supported the wasting time and she did respond to him in july of two thousand and thirteen sending out for a medical evaluation but that he wasn't going to participate clock thank you on our i want to address your honor's question about hamilton and hamilton is a very similar case because if the doctor in that situation in that case had interviewed the medical file and hadn't performed an examination of the plaintiff and that's what happened here and similar cases from other courts have held to have drawn this distinction between when a doctor hasn't performed an examination in these very basic requirements of medical care and how that you can infer subjective knowledge from those those problems if the counsel in hamilton the plaintiff was recovering from surgery and was there was a medical order that he not flocke so don't you think that's a little different than than happened in this case where there was recent medical affirmative treatment that was disregarded no i don't think it's different your honor because the point in hamilton was that the defendants relied upon a different opinion by a doctor who had an exam in the plaintiff and had reviewed his medical file and mr gaddy was at the time of this treatment and is today still being treated with always change pronto because even though he doesn't he's not at the point where he requires significant affirmative treatment in the form of physical therapy and medicine if he's handcuffed behind the back for two hours he runs the risk that his shoulder just like even assuming that dr adams was at least the nurse came to his cell there's a dispute about whether it was an appointment or a cell from this that he said that the nurse just came to him and talked to him through his cell told him he couldn't she couldn't reinstate the condo and so he wanted to see dr adams he put into actually three s bybee i don't say you're not a doctor i'm not going to talk to you but why would he why would he turn down the opportunity to tell a nurse what the problem was while the records not clear on why he did that but he didn't except that he did want to have his chrono reinstated and mike my shoulder pops it out i've had problems with my shoulder and that's why i need to have the crown reinstated if you can't talk to dr adams all file more paperwork well we don't know if and if he had talked to the nurse if his kind of would have been reinstated  aware she received these requests that he wanted the chrono reinstated and at that point she could have done what dr millet martinelli did a few weeks later and reinstate the kind of she could have said all put the crown in place until i can see you she could have  suggested call the doctors and find out why the crowd o had been put into place in the first place but she didn't do any of these measures so she didn't do anything to abate the risks she had created when she discontinued the crown in the first place and for that reason i ask you to reverse  honor thank you thank you to both counsel where you are with the cases are you to submit it for decision by the court and on behalf of the court counsel we thank you for accepting this case pro bono we appreciate the argument and the briefing that you do thank you very much