case number fifteen forty one thirty six seven tara dr kirshner at all oral argument not to exceed fifteen minutes per side of the story and mason for the may proceed good morning i would like to reserve three minutes for rebuttal you may the district court erred in granting summary judgment and a case where mr darragh received no medication whatsoever for three months and then was prescribed a medication with that was not only counter indicated but also demonstrably harmful to mr darrow a pelleas took away the only treatment that had worked for him both inside and outside of prison and mr darrow went from stable to suffering and the six weeks of receiving the first six weeks of receiving no medication mr dare i began to have build up on his feet pain and open fissures and in turn an increased risk of infection he was the same man with the same serious medical need but upon entering madison correctional institution received either no medication at all or medication the made his serious medical condition worse but when you look at the defendants though their level of culpability  field where a person is writing the prescription for the medication and is actually trying to get it how could you feel that that was the this should be the standard provided no or inadequate medical care here  you're correct that each defendant has a different level culpability but they are all culpable dr weil was the prescribable our prescribing physician and he reviewed the medical  he made an order but did not actually verify that the prior authorization was actually present and because of this it resulted in mr de or not receiving his medication for a period of three that really negligence i mean as i understand the facts and correct me he couldn't just get soriatane right then because the second prison was under a different regime than the first honor fact that he didn't write it on day one it wouldn't have been effective if he did so he tried to see what was going on your honor that is actually a genuine issue a material fact  into the new facility so there were there is evidence that supports a finding that there was an opportunity for dr weil to provide that medication so then it in april as i understand it comes in january in april while does terra obviously then does that culpability end with this writing because your other theory was that wild could have still at any time gotten it from the outside so should he have done that when krisher denied his request your honor when dr weil went through the process of getting prior authorization at that point wants that's a second portion of his culpability at that point we can move forward with the consideration of methotrexate and dr weil as the as the physician who saw mr derr often was knowledgeable about the fact the methotrexate was not only not working but it was putting it mr darrow in a worse off position than had he had no medication whatsoever just didn't help  amino suppressant what it did was cause the the fissures to remain open so they would heal a little bit and then crack back open so had he no medication whatsoever the open fissures would remain earlier he did the other official requests for you to is there anything in the record that shows that he at that time knew that the is the medication of last resort meaning no other medication or treatment has proven successful then you are able to use methotrexate because of its higher level of toxic toxicity it's actually not it's exclusive reason and we know that because when cost was taken out of consideration and mr darrow and his wife agreed to pay for it then we saw that surprise him was in fact provided to him and what just what about the nurse stand for what did she do wrong would you think amounts to deliberate indifference mr and fourth was the health care and minister who was in charge of ensuring that medical treatment was provided to and maint madison correctional institution on in march three times in march once in april once in june three times four times in july once in september once an october and once in november miss stand forth was made aware that  methotrexate was not working that mr darrow was continuing to have pain open fissures and was at risk for an infection so consistently throughout the entire period that we're discussing mr and for with made did not have the ability to but what power she did have was to ensure that appointments were made with the appropriate medical professionals and that the medication process going through the prior authorization process regularly yes mr darrow did have appointments with both dr weil and their specialists who is a podiatrist but the resulting action did not support an actual treatment mr derek came in with medication and that was working and if this were someone who was a diabetic and they came in with a medication and then didn't receive medication and become united with that in the sense of a physical yes he had been getting a certain document and i didn't see the nurse stand forth there wasn't you know she didn't submit a request or she didn't you know check off a box or send a check to pay for it is that while in krisher we're doing doing or not doing what was there something the doctors told her to do that she didn't do you know your honor there was not something that the doctors instructed her to do miss stant fourth is an independent health care who facilitates medical treatment and so what she could do was make sure that mr derrick had additional point ments when he was making complaints of pain in the methotrexate not working she could have ensured that the prior authorization request was submitted on a more time in a more timely manner and she could have ensured that the follow up to it to prior authorization request would have had to be in fact done by one of these doctors so you're saying she didn't she didn't enough precisely and we have we do have documents that support that this was a part of her role in e mail she discussed the more expensive drugs or i attain she discussed the fact that mrs darrow the  the inmates wife had complained to to her that it was not working she saw in formal complaints and grievances that mr darragh files she knew that it was not working and did not take the steps necessary control over the doctors of this was not working from month one month to month three month four five six seven and did not change the treatment of mr harris oh my apologies i have finished with my time doctors all of them combined went beyond what they were even supposed to do in this situation what they were really under policy procedure required to do to obtain medication that this gentleman that this inmate wanted i'm sorry kept telling them the medication that or he had gone through that he had a condition and just going through the motions because that's what you're supposed to do that your honor it wasn't until march nineteenth two thousand and eleven acknowledged by the district court was the first time in the actual record i mean i see his declaration which is a lot different than the actual medical record march nineteenth two thousand and eleven was the first time mr dare made any complaint of pain and that's when he filed an informal complaint this was the fourth time that he had made a complaint about not receiving soriatane but prior to that there wasn't any complaints of pain per the medical record which even the  playing to the best march nineteenth when did he get it finally he ultimately that was the first time he got there that was the first complaint of pain he ever had and he's also at that point complaining of open wounds he didn't get sore attain and until sometime in february he says in march some time here yes he didn't get sort thing but he to his doctor while his doctor that he had prior approval he had already received prior approval while lowering that was untrue in the record reflects that mr barrett knew that he didn't they got three times what would make you say that that means he knew he didn't because if you go through specially the route report and recommendation as adopted by the district court and then later basically assumed in his second that he was doctor while said the patient is under the impression that the remote's recent prior approval was still in effect so kind of dare i knew that he needed to have that he needed they knew this was a non formulary medication and when he was first received into o t r see he was informed when he first came into the sex offender program at madison he said and he was asking for sort tain they said that's a non formulary medication you have to get approval for that that's all reflected in of those who have custody of the physical person of the bear and that's what dr weil exactly what he did when he's hearing that he had prior proof we said hey get this prior approval so i can keep ordering this medication and in fact if you look at the medical who did get that prior approval he wrote is in order for the nursing personnel go get that prior approval that this patient says he has and in the same time believing that it was in effect he's writing orders for sorting he was there was three know go back to what i think the people who had the bath ability to determine whether or not existed after he raised that for the people in control of that facility the person in the obligation and responsibility to take care of the medical need for that individual in their custody and control and they did that your honor they saw him they provided pain medication they did give him a little late i lay and that's another dr pressure dr eddie all would have known that because it was on the records and yet they didn't provide him the one medication they knew work for a fairly serious medical condition this this h b k and i agree with that europe judge gilman except for one somehow that that's a track say it has been determined to be at least effective and damaging drug there is no evidence of that in fact the only evidence in this record is that mets a track say is the preferred of a medication ok the happy for second  rely on that we can believe that but when this person comes back and tells us soriatane is the thing that works we can't rely on that because we don't know you know if he's a reliable reporter with respect to the reliable reporter when he talks about what works in his situation your honor you can't just rely on what's convenient for you and the fact of the matter is that he did not get this medication until he and his wife agreed to pay for i mean first of all i'm not saying the we have to should be able to rely on him but what i'm saying is whether or not whether these doctors are stuck the only person that's going to put out the sore attain is a ohio department of mental health and this system was created for this very reason so doctors couldn't order this medication obtain this medication plains council told this court that oh all they had to do there was two other options if it was denied by the medical director or the director of the bureau of mental health you just simply write a prescription and c v s can philip that is completely inaccurate and that's why the system the system is devised the way it is if there has to be even if try a formulary medication first if there's a complaint about methotrexate versus soras tain that's an issue that none of these individuals these currently named defendants can have any control over you would have to bring in the  eddie could have certainly done no no not without trying the method tracks a first you would have whether he did it right in january right in january says hey because dr kirshner he see he sees the transfer summary coming on he says that he's taken soriatane dr weil does i'm sorry and he says and he writes a prescription right then for soriatane believing that it was he was already receiving it correctly that prescription in the record yes he read what not he wrote the order the prescription is but the problem was i saw the document where kirsh are denied it in april do you have the citation for the january document and i can look happened correct me if i'm wrong is that lebanon was on a different system so that when the when when darragh said he had prior authorization what he really meant was he was getting it because lebanon i guess for whatever reason didn't have these restrictions these bureaucratic restrictions that the second facility did is that pretty much right level the was not centrally controlled they could if they still had a pharmacy inside that could obtain medications there was this whole movement to century centrally control the disbursement of medications there's a certain amount of medications wasn't that these doctors were deliberately indifferent it was kind of that the system was deliber indifferent the doctors prior to that that were issuing non formulary medications in on not deliberately indifference but maybe next inappropriate in contrary o t r say policy before trying formulary medication so they have to try the formulary medication or you say lebanon really did something wrong it's just that they were physically able to do it when madison couldn't get around it medications before when he first came into the corrections receiving center there he was informed because he was asking for soriatane then he was asking for sorting then and they said that's a non formulary medication we're going to try something it's called devon knox i think and that's also in my brief and they were they said you're going to have to try that for at least thirty days first well thirteen days into that he was doctor shopping he asked a different doctor iraq this new facility should have been should have the records showing the treatment protocol from the from lebanon but you have to remember that wasn't two thousand and six yes oh yes but the regiment had sure ainge from two thousand and six until two thousand and eleven this whole centralization started somewhere in two thousand and eleven in fact just to let you know if he had stayed in lebanon and had not moved once lebanon became centrally that's not a part of the evidence that's never been put a part of the ever so i don't want to miss the i don't know how long you have to be on the formulary medication to determine it to be whether it's ineffective or not and again if you look at the record i understand mr darrow is saying one thing but if you look at the cold record the medical record in this when he first after he first got the method tracks eight in april fourth on april no i'm sorry i think it was april  eleventh he picked it up along with the folic acid he didn't have any there was no the complaints even though and this is in the report recommendation as well as a doctor by the district court even though he on page a document fifty three home page i seven fifteen he had been back into the infirmary ten to fifteen or at least ten times after speed getting the meth attracts a but yet he doesn't refer make any reference to each p k in till june fourteenth two thousand and eleven and then and this is significant he doesn't say he's having pain he says that his feet are no worse but no better he says that and he asked to have his dose increased he's also seen running on the truck after that which he tries to backpedal and say well it doesn't matter if i'm sitting down or if i'm walking this built up which is like you're walking on something it's hard callous on the bottom of your foot if he doesn't he's he says what does it matter standing walking then why the big issue about the having to have a lay in to relieve the pressure and he knows somebody when you stand on something it hurts if you're standing on something he's running on a track he's asking for more method and then after that he doesn't make the first time he makes any complaint of pain after receiving the method tracks a is not until july seventh two thousand and eleven and at that point he says he's in severe pain this multiple issues of supposedly complaining of pain and pain that's not accurate you are not according to the medical records he doesn't make any complaint to july seventh two thousand and eleven of pain but they're confused because they see him running on the treadmill doesn't get the even if you start july seventh he still doesn't get the medicine for nearly another six months though how department mental health is not going to approve soriatane with these kinds of signs and symptoms and he's not complaining of pain he's running on the track they want to that basically you're saying that the medical evidence is ambiguous and the docs did the best they could under the circumstances and it wasn't deliberate indifference even if it may have been a mess up and do as well as we should is that kind mr darragh let them know that it was not working and all of these things are genuine issues of material fact that should go to a jury these are issues that there is evidence to support mr  statements around each of these issues and because of this we ask for the district court's judgment summary judgment to be reversed are there any additional questions from