to the point in which she was screaming other inmates heard screaming and a call had to be made to nurse church the church did not come to mr peterson to check on him at that time the streaming continued for three hours later at two thirty in the morning on april eleventh when their shirts finally relented and came to see mr pierson because like i understand your position that you don't need to present medical expert i testimony but i the attempts to seek funds we requested funds for a expert in order to identify the extra two in order to obtain expert testimony with respect to the state law cl forty years ago mr pierson claimed that that caused him to suffer even more pain than what he was already in and shortly thereafter three hours later he was taken to the emergency room at somerset hospital for an appendectomy i had  workhouse this racist question for the jury as to whether or not that's deliberate indifference i actually looked up the term callousness on merriam webster's one there was a website on which talks about  feeling no emotion feeling or showed no sympathy for others were hurt hearted and that impresses that talks about a callous indifference to suffering so i wanted to start and focus on that instance with respect to nurse rights and that we medical to be called unfortunately for mr pierson he had already been seen twice that day by two other nurses so the response you got back from their shirts through the corrections officer was that misreads was not going to come see him because he had already been seen did when he did not come home in response to the call i think i think if you look at the evidence in so you can see that there are two prior calls for that nurse troops allegedly said that he knew of two to his need for medical attention and that he was going to have to wait because you've already been seen twice that day and i was on sick call for the next day but what does that reflect and it's where is the record on what was communicated about condition were screaming at that point it was exactly communicated by the officer to to nurture and i don't know i'm not sure it's not selected in the record number i'm not sure we can even get to that because discharge summary that went with mr pierson it talked about not having any restrictions for having restrictions of not lifting more than twenty pounds and then also that he needed to have a fellow  that sodas long johns in his underwear and she's a nurse from a guard who tells him that he had based on the looks of this don't get undressed because i think you're going to be sent to the to the emergency room and that's made o course dr mcgrath and refer us to him reports back to mr pearson that he's not being sent to the emergency room and in fact it but to refuse upset was mad that he was called that at night that if you start with the nurse crying mr pearson that she thought that his gallbladder was failing at that time and in response to that she offered tylenol a maalox didn't didn't call tech the physician assistant then contact the doctor then send him out so we're emergency surgery at that time and this is that at five o'clock that they before he was eventually sent out for emergency surgery for his appendectomies so she has her subject of knowledge is that she believes the doctors come in next days on sicko it sure sure of sending him to somerset hospital immediately what else who she's supposed to do with that stage call the doctor and say that she felt that his he looked at it from two points first just nursemaid are calling him and telling him about the situation that involved mr pierson where where he was he told them that hey be ready you're probably going to the emergency room after he saw the amount of blood that was on his long johns the second point then is when he finally does see mr pierson the following day he doesn't see the amount of blood that was about the copious amounts of blood being discharged the night before i think if you look at those and so i think a jury could reasonably conclude that he was deliberately indifferent to mr pierson serious medical needs the district judge in this case you know there are things that are in the magistrate's opinion that are somewhat disconcerting with respect to discussions about these court agreed with that on the first two occasions we had given consideration as far as if it does go back to trial but for that it does go back to trial whether or not there's any avenue left for us to possibly have it mcgrath that would be the timeliness of this follow up appointments discharge summaries clear when mr peterson is released from somerset hospital that follow up with telemedicine a one week will take place telemedicine would not have  should have been provided but there's one question such a big we don't really think of the two points i think that makes an assumption i think that's speculative that he was not at home and therefore adopted a wait and see approach and there's there's a nothing to support that especially when he goes on to prescribe other medications pushing fluids let's wait and see what's happening here which is a very reasonable it's a judgment call that the physician has every right to make as far as the bleeding if you look at that necessarily a serious medical need but rather the cardinal connection the increased risk of harm the actual harm a think this circuit has he says indicating that it would be in a skirt in this case had long expired and there was no way for him to be named as a defendant nor was that anywhere even remotely suggested in the taking of his deposition his deposition was taken to the fact witness as the surgeon as a surgeon who  instructions to mr pearson claims were not followed as the surgeon who would have been part of the hospital who would have had access to the records and the follow up period or any complications that came from his own surgery he with the observation that this case cries out for were expert testimony wore the appellant to be able to make out his claims yes and here's why arar this agreement as to type this is a process medicine is an art and a science act and statement but never more true than when looked at in this particular instance we have a man with a belly ache he says it's a severe belly ache or other times he acts as if it's not particularly severe we have the possibility as if you look at the progress notes of nurse thomas chill increasing pain and continuous i through the day yes we have a call about he but he's he's screaming with pain that evening around eleven o'clock physician not to send him to the emergency room at that point but to have when we were few hours it isn't that i'm put aside a nurse and medical training that goes along with that but in even from a lay person's perspective serious harm first your honor we are not discussing a case of medical malpractise that's clear from a stealthy campbell well what you've described is a process of nurse rhodes beginning to perceive for the first time as is the third examination in a period of less than twenty four hours of mr pearson that in fact it may not be a muscle in fact it may not be problems with the fried fish eate in his gallbladder and in fact it may be appendicitis so he has  taken from his cell and put into the habs into the infirmary for the purposes after all his two fifty in the morning when he first encounters mr pearson maybe put the wheelchair incentive aside for the moment k then indicates that he's pursuing a course of right he calls right from waiting and in fact at eight ten am that next morning the not a doctor but what the six circuit says in connection with that is vomiting is a particularly key indication combined with abdominal pain of existence of a appendicitis and in all the situations wh is for a big medical professional to reach the diagnosis of possible appendicitis yes but however your truth can be that conclusion he did come to that conclusion and documented that opting not deposition the way i've done it dr padam said the radiological information was inconclusive they didn't show that the tube of the appendix had swollen he said it's early stages it's early that violated the constitution that that he said can take place in a matter of a few hours what we have here is a situation where they're asking for us to say they stated diagnosis of an appendicitis and the removal of his appendix across twenty four hours where four nurses saw him where a doctor saw him where he was never neglected where he was never let alone and i think there are two ways of looking at this if what it what it finally resolves itself to is the idea that he ought to have been sent to somerset hospital sooner our circuit has been recognised as being one of the circuits or one of the first in the eleventh unlike the success which requires proof and this is a good case for that because there isn't any on prove that whatever delay in medical treatment took place actually cause harm and they didn't they didn't provide that proof and that's a vital point and what the district court kept saying is relations relation to all of the nurses all of this no one has said that the mere fact that he's in paying and they alternately conclude a few hours before a doctor finally decides that correct diagnosis that he might be having appendicitis is somehow  and could walk ok that a medical professional in this case there was rather should have helped him rather than make him call room chair that's a different point in the point he appeared to be he was making jokes at suppressing ten am but what about the three well we can assume that we see every case that the best i could say is this cannot be we cannot have a trial based on an inmate's see pics that somebody did some horrible thing to have which has no way of being proven or disproven let's just convene a jury trial in the united states district court and decide whether or not we believe him evidence to support it that he was somehow mistreated and some are called and answers and anyway but if they can't be demonstrated to have happened where she does one concede that in fact he has the only claim which would survive in return for a trial in this case is the trial that is the claim that why he went to bring him in the wheelchair to  going for the final examination which revealed a suspect in appendicitis according to him mr rose so there's no doubt about that that he somehow made him crawl across the floor to the wheelchair there's no way to defend that i did race on me there's no way i can defend that so we come down from it that's that's the point if you want to say bad you know  no you are we can't say that without expert testimony what you're saying in that situation is he went and nurse says i think you might have an appendicitis let's quote you infirmary and a couple of hours a doctor's going to be here and he'll check and see whether he thinks that's correct i don't think that's the lucrative difference in maybe medical malpractise in terms of what nursing practices but i don't it's a response if you think in terms of ineffective assistance of counsel and criminal cases what you're talking about is not necessarily the best response but a reasonable we can't on that face say that that's on the face of those fa we can't say that that's not a reasonable way a nurse will deal with this pursuit particular situation i want to hear from somebody who knows what they're talking about before i come to a conclusion  court simply because it's now come here on appeal he has to look at least identify it for the purposes of plain error at best well yes to actually raise it in the briefs this is this is just brought up for the first time this afternoon and i distinct from some sort of violation of the lease of care that nurses and doctors have his nurses and doctors in dealing with sick people and in order to show that this was cruel and unusual punishment inflicted on me on mr pierson you would need to have expert testimony that showed that these nurses were in fact so worked closely in this regard of a good nursing practice that it had to be viewed  reporting difference war that the harm was in fact realized by the doorway so it had to be deliberate indifference and i think those are wrong or whatever self indulgence may have been  not feel that expert testimony is needed in this case number one with respect to the objective prong that's basically been conceded that he suffer from serious medical needs number two with respect to the cases that are identified and particular and th briefs which talks about the harm that was done to the patient be the increase in harm or the increase in damage to those course talk about needing an expert for that in our situation here  pain and four hours later he was fine he truly did and here in fact had a heart attack for it and those claims are based on the agony that he suffered from the time he first complained to the time he was finally sent to the hospital council for their arguments and arguments in this case and we'll take this matter under advisement we'll take a short recess and come back for an ext