heard in you've heard many times to look at the facts in the light most favorable to the nonmoving party as a result of what happened to kathy boyer in the women's prison  any she has suffered a life sentence of disability disfigurement in pain march fourteenth two thousand and fourteen she fell out of her tap cell but we know the facts and here's a question i want to start with so we can clear that up right away why is this not a civil matter rather than a constitutional problem does it not boil down to a claim of inadequate medical care or medical malpractise because the doctor judge it's a good question the doctor dr lacy is the medical director at the facility is clear he made it clear in  authority i get back there so he doesn't act under color of law this is the one nine hundred eighty three matter where you hear if this satisfaction with a doctor acting under color of law has to rise to the level of being an unconstitutional breach does it not well that appear to be the analysis more than med mal well actually you know this is one of the things that very much concerned is about judge freeman's decision is that he seemed to assess this is if it was a med mal case and it really is not a medical malpractise case it's a question of whether or not the treatment she received is a violation of the amendment  the standards for the violation of the memory are significantly different in the standards for evaluating standard of care under medical malpractise action it would be more rigorous i believe that they are they are not even apples and oranges i mean they think they're amateurs they're both fruit they both deal with doctors kind of being challenged is correct but the standard of a doctor who is in charge of all of the health of all of the individuals in them prison is a different standard that he has just stared it is now only to uphold the medical practice but i believe he has to meet ensure the isn't satisfy in order to show deliberate indifference under nine hundred ninety three and i think you're rightly admitting that it's a difficult standard for you it is a difficult standard of tell us how obviously that's not going to be we're talking about here we have a person who had in the community oh bleak fracture of her humors it's four breaks in her arm and her shoulder was dislocated by the fall it's serious enough that she sent to the emergency room in the emergency room there's the point in every diagnosis and provides medical instruction afterwards i don't believe there's the surgery for that was not excluded not precluded but it wasn't in terms of deliberate indifference the treatment that was applied which was a sling and  examined her he never looked at her and what he did do was he did not follow the simple instructions from the emergency room that she be seen by an orthopedic surgeon who is the proper person to evaluate whether or not surgery is in order she was in fact not seen by an orthopedic surgeon for seven weeks and by the time she saw the orthopedic surgeon this  committed fracture he had begun to heal and callous over in her shoulder was frozen it is today and she has very little use of her the rhino what we see i gather was the doctor on call that night is the medical director and he wasn't called yes was on call but another dr johnson saw her a few days after that she was seen by another doctor but the only person who had the authority to send her to outside the prison is going to be dr lee c and he is the person who never in his deposition says i'm not responsible for the care of this person is not simply an call he's the medical director and ultimately he did send her to her to be surgeon and when the eyes of the surgeon saw her he says too late to operate on this woman maybe if i had seen her earlier then we would have operated on her and she wouldn't have this today you can feel the patrician coming out of her arm i don't know what they would have felt they'd seen her five days after her break but we'll never know them because back to the way you see decided in his own mind to ignore the objective specific direction of the emergency room so we believe that the question of whether whether or not a serious medical condition exists is clear it was diagnosed by a physician it mandated treatment and it seems so obvious even the only person would know this since there was treatment it just wasn't the treatment that the e r doc thought was the key s treatment she got sent to the car you are correct there is some looking level of standard of deliberately indifferent to her complaints ok i understand that you can't be omniscient when you get in an emergency room doctors report and dr lee see assumed for whatever reason because he didn't  examine this woman that in fact the sling that they put on is to me that he would have done something different upon exam i'm not going to assume anything about dr lee's i mean for your case or do you have some needing to assume that had he looked at her that would help show deliberate indifference because indeed had he looked he would have done something different than the other doctor from the prison who did examine her i believe didn't examine her and didn't send her he also didn't give her the medication that was requested he didn't put her in the infirmary she was in her cell on the second floor laying on the floor the lower bunk at least not in a top bunk falling into a plastic chair but she had an arm where she could not eat no one was there to help or you know help her in violation of prison rules other prisoners they brought her tylenol they were her maid all they brought her food they helped her walk down the stairs because of course she couldn't balance yourself with her arm to wash or here in the mob closet the worden in charge of the floor asked dr lacy to put her in the infirmary he refused he said she doesn't need it it was a medical opinion was it i don't believe it was a medical opinion i believe it was an opinion based on deliberate indifference i do not believe that when someone has visibly seen you've had this background you have all this evidence  was very interesting supposedly she had a wheelchair that was going to give her mobility i don't know if any of you have ever had the misfortune of being in a wheelchair but if you have you usually need both arms to run them so this is another example of the doctor deliberately ignoring her medical condition and it was serious and finally when you take a look at what happens after she sees the orthopedic surgeon she is put in the infirmary she is given pain medication so i believe that all this comes down to the simple question of did the trial judge improperly grant summary disposition when there should be material questions of that as to the credibility of the evidence and the conclusions that dr lee c made which are totally self serving they ignored the and so we believe that since the totality of the circumstances are before you that in a case like this she should be allowed to argue that her what she suffered was cruel and unusual in support of insurance companies never once finding a person disable sounds yes dr lee opinion was completely reasonable well we have here to say accepting that evidence flies in the face of other facts which we believe the court did not sufficiently consider so we ask here today that we have an opportunity to have a jury decide whether or not the disregard of the medical directives in all these other circumstances are such that she should be allowed to bring her case before the jury every zero to couple minutes at the end in appreciate your questions thank you for your argument here  working at women's here on bailey correctional facility part of the machine department of corrections during the relevant time period he had a very minimal role actually in the treatment of this injury the fact that he was the senior physician on site is really irrelevant because contrary to this is a medical director have some additional role beyond the treatment of the patients assigned a little bit of a revising the other docs rule he's not the boss of the other doctors there's a regional medical director who is the supervisor for all of them  any of those people supervise the care administered by particular doctors my just trying to find out whether the councils were making the point that if the other became overseen what everybody was doing no an y testified that he did not keep tabs on what all the other doctors were doing once another doctor point would be that he was required to know that is not true if he did become aware that someone was not being properly treated by another physician as the senior physician it would be appropriate for him to take some action to correct that which is what he did later on in  what appellant argues is to him being the only physician who could refer to an orthopedic surgeon that's absolutely not true dr johnson or any of the physicians on site could unfortunately she didn't really document what her treatment plan was she didn't order a follow up x ray she didn't order up a follow up appointment with herself i guess that's why irrespective of who could send someone out the doctor to call in prescription medication and x and had other short term orders and then throughout the time she was they are it seems to me that the record reflects that he personally directed her medical treatment and ultimately himself is the one who scheduled the consultation six weeks after the injury viewing that in the light most favorable to miss boyer it seems to me that dr lycee in fact rendered the medical care to her this is the extent of his treatment he was on call he received word that there was a serious injury at the prison and he said go ahead and send her to the emergency room which occurred when she returned later that evening a nurse called him not a doctor a nurse called him for initial short term orders to get her through the night and then the next day she wa to see a medical provider which could have been dr lee she could have been any of the other physicians that happen to be dr johnson at that point it was dr johnson's responsibility to determine his boyer's treatment plan well if it was her responsibility why do we keep him in the record rendering medical care to her well it's important to note that never did a nurse schedule an appointment for  what happened on a couple of additional occasions is that a nurse was seeing ms boyer because there are nurse appointments which are separate from physician appointments so while the nurse was seeing her the nurse decided to consult dr see well that tells us that dr lacey was available and the nurse trusted his judgment and found him open and willing to answer questions was dr johnson available at that time was she with other patient we don't really know but dr johnson was the one who should have had the treatment plan ordered the follow up seen her again made sure she was healing decided whether she needed a referral or not and that didn't happen dr yes the record then reflect that dr lycee gave the predominant number of orders for her medical care dr lisi gave mostly verbal orders based on what nurses told none the less they were his orders and one of them was to please to have two times schedule her to see a medical provider the first time that was dr johnson who was responsible for assessing her in determining a treatment plan the second time he made that instruction there is no provider appointment so it doesn't appear that they had order was followed it doesn't appear that the nurse actually scheduled her in see if we are correct no he never had an appointment with her never he never taught her on april tenth he did a chart review and what we don't know for sure is what sparked that chart chart review whether a nurse noticed that she had had a follow up whether it was in his mind after the discussion on april third something made him say that you know what i'm going to look at this patient's chart and when he did that he saw that there had been no follow up x ray no follow up appointment and he was very alarmed and so at that time he ordered the follow up x ray and beside the results of that x ray he referred ms made the referral request by dr least he made sure that she did get that follow up care once he became aware that dr johnson hadn't been handling it but in actually three keys it's of crucial importance what the defendant knew so it what dr lisi actually knew was the situation he was confined with on each occasion which throughout most of this time period it was a nursing hey d see here's the situation what should we do at this time and he would give instructions like order medication order a personal aide order short term orders until she could have an appointment with a medical she was cared for by five out of six of the physicians at the facility during the time she was there i'm not sure how many nurses that might have been in the judge's opinion he made why the village judge's opinion five nurses and doctors which would have been the special guests including special rights the concern when you see that kind of record is that the standard here  deliberate in defiance and can you have an organization that's run in a way that no one ever sees the same person twice and so no one news no one really knows what's going on and the person just falls between the cracks and that's a question of indifference isn't it and i guess my concern about the record is i'm looking at who is actually doing things for this woman and it's dr lycee and no one nurses might be the ones contacting him but the response and the orders are coming from him i guess i'm just not  don't find it an adequate response to say there were five nurses and there were six doctors and she saw them all at different times and they all kept different information and so nobody is really in charge of her treatment and that's ok if and if she had some problem from that then i'm not deliberately indifference indifferent as i only saw her the first time and i'm not deliberately indifferent cause i'm a star the second time and and it just goes down the road and no one is in charge so when i see that kind of a record what i see is who moved in and out the most frequently and ordered the pivotal test and treatment and m valuation of this record is that was dr lycee now if you look at dr lee c's testimony he made it clear that the physician who sees the patient for the condition initially job to see this patient as opposed to actually himself becoming the treating physician i am not sure that this was asked of dr lee you see i believe based on what i know of this case that he lacked some confidence in dr johnson in the way that she had handled the situation he was more comfortable taking action himself at that point so he was more comfortable himself rendering after it became apparent to him that dr johnson hadn't done it which was at the time that he had been ordered a follow up x ray and then ordered the orthopedic evaluation but being a prisoner i s quite different than being out in the public and having your own personal doc etc but the case law with respect to the eighth amendment claims in a prison setting are they instructive to the court or that is that in your brief to tell us whether there's the standard of care is different than the standard of care is different but the cases that you would medical care because here we definitely have a situation where care has been provided she was promptly sent to the emergency room there were stirred certain steps taken immediately even upon her return to the prison  not i would have i would not have operated on her because that's not the issue what's your best evidence that the arm that she ended up with healed the way it did is not evidence that she suffered a harm as a result of the failure of treatment there are a couple of things one is that even  she had many of the same complaints about having difficulty using that sack and her last appointment with dr weil her before leaving prison and he found that her healing was fairly complete she had minimal pain and she should have a fairly functional shoulder which is very different from what ms royer later on in this litigation runs this litigation was going on was saying her condition was but doesn't she didn't say that she has a frozen shoulder he does and you know we have this was also you know she fell on the ice at least twice after presidents going out but she did suffer some additional injury after the first time she fell on the ice and she said that the pain in her shoulder was on a godly heard primary care physician did refer her to an arthur p d surgeon but she never saw a line so we didn't know you know whether she had indeed suffered a new injury was a testimony with respect to why she didn't see one i think there was an issue with her being able to get an appointment because of her insurance or lack of insurance or her situation i'm you know she couldn't afford it that's probably true yes i guess i'm struggling with the fact that you know in law school you're taught you take your plaintiffs if you find them and if you have an eggshell skull plaintiffs the two hit and they were harmed more than someone else might have banned then that's the point of that you have and here you have a woman who did have some background i think that's conceded in the record but the question is whether the four fractures and not matching healing is a harm that resulted from the failure to take the medical advice to have her viewed earlier that might have been surgery but it might have been you've got to put her in a binding and she's got a way or it because if she doesn't it's not going to heal appropriately which i think the record is fairly clear that it didn't and you know even if she endured it again and that still begs the question because was it more enjoyable because it was frozen i mean we don't know those are questions that that relate to issues of fact that would have to be determined so you know i guess i would just say to you you know give me your best case that would say that that this is not we remember the facts or something because well look we'll search for it or it might be gareth's and this says that when you have multiple participants you have to look at that individual's involvement what they knew what they it from any and mistakes that anyone else made and that betty answers yes and i just if i could just make one closing remark i don't think that anyone would be looking at lee see if the plaintiff had chosen to sue dr johnson and i think it's troubling that because upon chose to sue dr lisi out of the various people involved nurses doctors that anything that could have gone wrong somehow comes back to him when if you look at it each time he was involved he did further her care each mrs voyeurs batty was completely black because she had some internal bleeding and he's in they wanted him to look at and he said no this completely normal it's completely normal and i think of my body were completely black because there was medical judge could the nurse brought in this is in the medical records which are incorporated in our birth the nurse brought to his attention the fact that her body was pla leave and he said i don't need to see her it's completely normal ok so do we have medical testimony about the how that affected her i don't know if we have medical tell me sounds dreadful but does it do we know whether it it's just ugly like a bruise that none of us likes or that it ended up having a serious effect well i can tell you when thing it is reasonable to assume that since she had bone braces again it's an assumption so i bet the answer tell me the next part of your argument i get it we hate assume it i just ask if there was medical testimony and if there is medical testimony because it's clear of that in  ok and then bleeding from bones causes pain dr frou a medical physician will tell you what it sounds awful so i go but it creates pain too it's not doesn't just look bad it hurts and she did complain about pain initially no they did give her some meds and then they switched them to tylenol and you know what you have to do if you talent in the prison you have to pay for yourself and you have to wait three weeks until the prescriptions fill so these know there's just a continuous stack of things that mean that that the trial judge ignored our opportunity to hear of a credibility assessment on the part of the jury of these fair you know in say labor  employment there are there's a tension between employers and employees and there are boundaries set by the nationally relations act and the civil rights acts and so forth in regulatory agencies but in a prison s there is nothing except the eighth amendment to protect a prisoner from unconstitutional violation and so we ask for an opportunity to allow a jury to look at dr le says behavior in the failure to for him to follow the proper care for him we believe we can prove deliberate indifference but we have enough proof enough evidents we should at least be able to take th will consider your case