so the scene warns versus prison health services incorporated at all for argument not to exceed fifteen minutes for playing minutes to be shared by final fifteen days of his life during that fifteen day period mr morin first reported severe severe chest pain even diagnosed himself as perhaps having a heart attack during the fifteen days that followed mr warren's condition actually deteriorated somewhat with several interactions with the prison medical staff mr warmed by the twenty eighth of january was reporting not just chest pain and shortness of breath but also no anja dizziness tightness in the chest and by that point is that the interview with nurse pope that is correct the twenty eighth that's correct the following day his symptoms we recruit to be even more ominous that's two days before his death because at that point he reported not only did he have chest pain and shortness of breath when he was exerting himself  medical need it is well established that it's not being disputed so we're down to the subjective component of the deliberate indifference standard and i want to give my limited time here to talk about one of the themes that has been developed by as allowing for the inference that there was in fact knowledge of a serious medical condition that required some amount of attention the obviousness issue and the  hospitalization dr starke directly refuted the suggestion that in point of fact there was something less than serious about mr warren's condition precisely because he reported that when he rested his chest pain went away dr stark as specifically testified that that was not insignificant that was not significant as a basis for denying him further medical care the other person who testified and very importantly on this case is one of the defendants in the case mr kim a nurse mr kim offered to him very important pieces of evidence here the first is he directly supported the point that the nurses within the facility do in fact have the authority to immediately order someone to obtain hospital care three emergency hospital care so there's no question that they have the authority but the second part of mr kim's testimony which goes to the obvious pain of this type of severe chest pain has to be treated with great seriousness and it has to end unless you can rule out no heart problems no no heart attack problems it should in fact receive  immediate medical care which leads to the third point which goes to the obviousness issue and that is the policies and procedures that were part of the response to the motion for summary judgment now those policies  chest it's the policies identify just chest pain as something which they classify as an emergent situation and emergent is defined in another of the policies that we  cited to him as a life threatening situation out so let me clear cut through here hundley from my understanding your i take it then that from what you've told us so far a prisoner who has chest pain i'll be good from exertion and then has not having it at the moment because he's not exerting needs to be sent to the hospital and not doing so is deliberately indifferent starting on the sixteenth or the eighteenth the first time he does it but it doesn't necessarily have to resort to a hospitalization i can't i can't suggest you and i would be frank in telling you that i don't read the policies themselves as required hospitalization and the but they all of these don't mean to me the policies are malpractise they're not nine hundred eighty three that when they create policies that doesn't make them constitutional rights i mean we're not suggesting they are constitutional rights but certainly the decisions of this court have elevated policies to its significance with respect to any issue regarding the liberty difference i've cited a number of court a number of cases from this court including two or three cases which members of this panel wrote on the subject of this that but to get back to your question the fact is that the the  policies even if they do not require instant hospitalization and dr stark would dispute that but even if they don't they go directly to this the whole point and what i've been trying to talk about here and that is obvious in this this is even if it's addressed to somebody like guard the fact is they are the the policy that's been prepared promulgated by the prison authorities says this is a very very significant event if you are presented with chest pain forget about shortness of breath forget about dizziness and nausea if you are presented with chest pain you must take it seriously but in that if all it is is taking it seriously it's to me at least it's hard to read this record and say they're not taking it seriously that there are trying to get tests they're trying to schedule them you know they're trying to get him to take his medication he has medication he doesn't seem to be in take in all the time and so you clearly have these efforts they see him the address him and i'm trying to struggle with way here at what point it becomes deliberate indifference unless you say that it is from the very beginning that's why i tried to ask you about that but as soon as he presents with chest pain everything else they do has been deliberately indifferent and i find it hard to buy that the the farmer tests is whether you act or fail to act despite knowledge of a substantial risk of serious harm now using that as the test even as of the sixty when he reports i think i'm having a heart attack i have chest pain even when he reports that on the sixty he hit they heart disease he has it the lots of people have that and don't get to the hospital isn't that the difference between stable enjoying an unstable and that's that's correct they don't get sent to the hospital all good again dr start would disagree with you when you say that but the fact is that what was done in response to that ok was in fact with knowledge of the serious harm that could resolve they knew they knew that he had this chest pain and they know they know what chest pain pain can be and it's even if they did not if even if the hospitalization is not the litmus test here the fact is that they had to do something to rule out that this was in fact a heart attack and the fourth point i was going to big on this obviously this issue was to bring to the court's attention a decision which you were quite familiar with and that is the carter case because the carter case did in fact despite factual differ does that exists that macarthur case in this one hundred case the kurta case does stand for the proposition that where you have these classic symptoms that's the words that were used in the carter place case where you have these taken in light of these classic symptoms was to take ms carter to the hospital now what's important it seems to be in terms of application to this case is that what the court in carter identified as the classic symptoms and that is chest paid and shortness of breath now in this case we have just begun and shortness of breath as early as the sixteenth but the twenty eighth we have the symptoms get and much worse but the twenty ninth even worse but the point is the obvious a list of symptoms just a list of symptoms north pope her from from mr warren and she is a nurse so is it your position that her failure to send him to the instructed with the it they stand that mr kim's testimony and dr stark's testimony she should have sent them to the hospital she had the authority and she had the information in front of her she had the serious she had the serious medical need at that point at that point in time he should have been sent hospital that if she instead calls a doctor or a supervising doctor does that satisfy her requirement to have acted and does that kind of create an intervening cause for not going to the hospital the other doctor our position obviously is no it doesn't it doesn't because when presented with these symptoms that he had there was it was not a it was not a decision that rested anywhere else but with taking him at that point he had to receive emergency medical  when an inmate has received medical care this court applies a grossly inadequate standard for evaluating claims of deliberate indifference to serious medical needs is that standard in your view different from deliberate indifference or is that simply a way of saying deliberate indifference is simply a way of saying deliberate indifference under the terrence case just not clear which which sets of defendants are you representing and i'm sorry i represent adam defendants in that case did not take the simple steps necessary to keep in a cool environment that is why those defendants were not has summary judgment but here with respect to mr warren there was no simple stuff that the  taken to save him from having a myocardial infarction ok i was looking at the at the evidence that dr bomber knew and i know you argue that well he wasn't having a heart attack when he saw him but but we've got to look at the whole all of the things that bomber knew and bomber saw him after he had reported chest pain sweating shortness of breath and said that he had never had pain like this before we have the records that show he's saying it's a on a scale of one to tina and on the twenty seventh bomber gets more information from kim and we've heard some of what camus had to say we have nursed pope's information about waking up with pressure in the chest witness shortness of breath nausea again the pain seven times and in light of all this on the twenty ninth bomb or not those that he now has in addition one hundred five pulse and high blood pressure and he prescribes a dietician medicine and vowed weekly blood pressure checked how is that not grossly inadequate well with all due respect your honor and january twenty seventh the conversation between the nurse came in and dr bomber was about the stress test and it was on that date that it was brought to dr bomber's attention that that test had naive and scheduled as he had believes it was the difficulty that what i'm struggling with is that bomber has already samy balmer is already away or of what he's had to say about what he's experiencing so the stress test is not some other doctor or some stress test now because of age or weight he's already saying this gentleman he knows he weighs two hundred fifty pounds he knows that he has diabetes you know that he's not always taken his diabetes medicine he knows that he is reporting terrible pain he says he wants to see a doctor because it thinks he's having a heart attack then he finds out a week lighter oh they've never even done the stress test with a man coming in requesting assistance so i am once again struggling with how in light of all of this information we have dr bomber on the twenty ninth adding high blood pressure to this list of symptoms and saying give him a dietician medicine and bi weekly blood pressure checks when dr bomber saw our mr warren initially on january eighteenth and assessed him he was not having chest pain at that time and he ordered the stress test he also ordered an e k g which was normal then on the twenty ninth dr bomber saw mr for the second time he only had those two contacts with him and it's very important to know that on the twenty ninth the computer system was down so dr bomber had no access to the electronic whatever you however you want to try to address them he knows that the man has told him i've never had kind like this before i think i'm having a heart attack isn't it his responsibility as a physician to say what else has gone on since i last saw him you have not given him the stress test records or beyond i can't get on the computer tell me what's happening in the conversation the doctor bomber had with mr  concern time was he wanted a snack bag he went in order for a snack bag relative to his diabetes and that was what he was interested in when he was talking to doctors he was not having chest pain at that time and even the next day on january thirtieth the widow of mr warren testified that when she talked to him on that day he told her he felt fine he was doing better it this is very different from a situation like carter were someone was in intense medical it an intense chest pain and it was not relenting and people just failed to contact my screaming that i needed sorting yes with misery hearing he was going with if he's if if you have all this background information and the hard work sometimes and then doesn't work other and you know you're trying to get a stress test because you first see a problem and then there's all this additional information many are just need to ask you point blank do you have to be having a heart attack when you see this doctor in order for him to have the responsibility to get you to an emergency room is that your position no but for there to be an emergent situation there needs to be something going on t being difficult then subsiding at rest and but not not being in tenuous but but here as of the twenty ninth still there was some degree of intermittent  see so that the argument really that it's got to be sustained it has to be continuous as opposed to you know fairly regular but not costly the argument is really that the doctor makes his assassination at the time the patient is there based on everything that he knows at the time but that would include if the patient is reporting at that time that well i'm not experiencing chest pain at this moment but doctor have to look at the bigger picture right i mean the twenty seventh or twenty eighth he didn't know about the twenty eighth in the twenty nine that is because the medical records were down that's right why would that be an issue of  fact for the jury to decide in terms of the doctors knowledge about that there's no evidence to the contrary the evidence is clear that the record was down i'm sorry when you say the record is clear that is the rec sternal evidence like the computer system tech or is it simply dr bombers statement in the medical records it is documented that there is a late entry because the system is down and that's by by whom i believe was one of the nurses so she says that what her information her doctor bombers and from your give me the exact context of what you just said i'm not sure exactly but i do know that it is in the medical records that the system was down on that date the date of critical or time of that day it is today i don't know january twenty ninth and particularly at the time what i mean is that the relevant crucial time here at least one crucial time one could look at is the time the doctor bombers saw him which was what midday on the twenty nine nurse warren nurse schilling saw him at five twenty in the morning he had just awake am i right that she saw shelling at five twenty in the morning so i saw a bomber some time later in the date at which time he was mostly interested in the snack bag but then we presumably this is in the record somewhere so we could find it as to what the evidence is as to the system being down is that your statement ok is to take a different spin on judge co's question is it that if you're having chest pain with exercise and it stops with resting that indicates stable and giant if you're having it like when you wake up in the morning that might indicate unstable angina which would be a much greater medical condition is that a fair reading  both the record in your view of it and you know as far as dr bomber knew on january twenty ninth this room was still having stable and one of the policies one would be sort of an just want to highlight because of the short this time i just want to highlight what i what i think that my opposing counsel's main arguments are because i think otherwise factually  in terms of developing the facts and the law i think our briefs are are fairly thorough so as i see what what the what the plaintiff is saying is that any time a prisoner has chest pain they have to go to the relied heavily on dr stark a board certified cardiologist in suburban new york city to say what type of care should be provided at a somewhat remote pr the upper peninsula of michigan and the and as i understood what plaintiff was arguing in their brief is that any time a prisoner complains of chest pain according to dr stark they must go to the hospital i'm glad to know that not the case i think in this case what we need to look at from a deliberate i mean we and i know that the court knows this we're here on an eighth amendment claim we're here when we go back and you're talking about cruel and unusual punishment and i know that you know how it's developed over the time and it's deliberate indifference to a serious medical need if you look at what each one of these nurses knew and did on each of the instances that they had contact with mr warren and so the only nurse that saw him twice was shelling once on the sixteenth one thought once on the twenty ninth freitag psalm on the on the eighteenth again on the twentieth i supposed in order to give the cagey pope warren on the twenty eighth in every one of those circumstances the nurses did what they were supposed to do the very initial complaint didn't come like were were worn showed up at the health care clinic and said i'm having chest pain i feel like i'm having a heart attack it came as a kite it came as a note sent through the or is mail system that schilling then read in the middle of the night and when she got it she called him up immediately in his cell and said what's going on are you have an pain now when does that happen and at that time it seemed to be the one reported that he thought it was related to his medication that it was taken so what did schilling do she said she said if you have chest pain again call back to the clinic immediately and i'm going to set you up on the schedule to see the doctor which which she did bomber song let me let me jump to the least for me the other judges may have different views but let's go to the twenty ninth in shoaling because they're here he wakes up with chest pain which at least the question i asked your co counsel that that seemed to be a significant difference at least from any of the other times so talk about what schilling did that morning because he came in like ten minutes after he woke up that right that's correct here ok let's go from that according to the record evidence that that is that is that that is a difference in his condition that he went yeah i guess from stable to unstable engine up or at least the possibility of that so what did schilling do when he came in he was not in distress all his vitals were in pretty good shape the only thing that was a little bit elevated was his blood pressure but it was one forty over eighty nine which is very borderline high i know a lot of people that walk around with blood pressure a lot higher than that so she took very extensive notes he wasn't in any distress at the time she gave those notes to dr bomber and she well she she left the notes for she set him up to she physically and him to the doctors call out for that morning and left a note she did not physically give the notes to dr bomber because they didn't they were they didn't they substantial record evidence that the computer was down that's why she had a very long handwritten note and she would have had a handwritten note if the computer was up with a handwritten note it would have been for the doctor threatened it was for the medical record ok so so she wrote out all of this information about waking up with severe chest pains and handwrite it said dr mama would have it when he examined it well yes i mean there's there's nobody would have it right i mean there's no  mean i mean that to be fair there's no there's no evidence that she stayed and i think she got off at six in the morning and balmer might have come in at nine there's no evidence that she states that she could physically han the progress note to dr bob or she knew that the computer was dying on brett and that's why show us and that's why she wrote the note so that he would be sure to have that information when he saw that one well born was added to damp mornings call out sheet for the doctor with and the only handwritten thing on the call out which is just a small list i can't remember what page number it is in the record but it is in the record and it has c chest pain complained of chest pain and that's why it was added to call for that morning so the the medical care there that was provided to colonel warne may ultimately have failed him and of obviously that's quite unfortunate but there were there's a series of factors that led to that one of it was mr warren's own man compliance with this medication he didn't really push going forward there was a mix up with the with the scheduling of the stress test which was not the fault of any named defendant and each one of the nurses when they had contact with mr ward did the assessment and turned it over to the doctor any particular questioning or  reasoning nurse schilling as why she didn't send him to the hospital right then that if you wake up with chest pain that's unstable angina that seem urgent that's what you go to the us right the testimony and with with all due respect for my my opposing counsel the testimony of mr kim is a little bit different than as it's been characterized mr kim can you answer my  mystery about what schilling says or did she say anything about her treatment that morning right to the general the general protocol for these nurses as they've been instructed to do and kim testified about is that yes they have the ability to send them to the hospital but they do it if somebody is experiencing an emerging condition when they're assessing them so like in the carter case where that that inmate or detainee were stuck you're still not answer my question about why schilling questioned about what she did and why that morning she was she gave a deposition she gave a very add him to the call out to see the doctor that morning so that from her point of view at least it was not emergent because he was not in distress at that time plus you know the other things you state dizziness wheezing shortness of breath nausea a nine out of t and too severe for him to eat and and that the symptoms had been ongoing for a month while wouldn't that be sufficiently and sent him to the emergency room because the evidence was that the that is what he had experienced in the past again when she assessed him all of his vitals were normal but she was concerned because of what he was reported so objectively none of those things were present those were his subjective reports as to what he had experience the subjective early reports every classic symptom of a heart attack that's not good enough for her to immediately send your house a bone no it's not good enough she did what was appropriate even plaintiff's expert susan rice testified that what nurse pope did was absolutely correct she called the doctor and said this is what's going on what do i do with him that doctor that and dr birch know he's not he sees a employee of going to the twenty ninth which is the big i think obviously the most important date for our purposes here the fact is judge three inches you as you confronted my opposing counsel on this the fact is effect is that dr bomber on that day his no says this is a man who knows that he is diagnosed potential heart disease days before he knows that it was sufficiently serious that he scheduled this cardio light stress test that specialized stress test he knows there was severe pain as many as eleven days before he knows all these things and he also knows that he has been put on the call list for the twenty ninth which means he knows he has seen somebody earlier in the day the his no on that day reflects an extraordinary lack of curiosity he actually puts into his note that mr warren came there for a snack bag while mr morgan was now not put on the call list to get a snack bag he was put on the call list because he had been examined that morning by somebody that dr bomber now says i didn't have contact with but he was put on that call list for a medical reason not a snap bag reason but that's what dr that's the extent if you read notes or the bomber is lying about the computer being down the inference goes two different ways either he is lying and i have to save i don't discuss i don't agree with mr donnelly i y it seems to me that if you are the nurse who hears all these complaints and you know the computer is dying on you either go you either send that guy out of the hospital only or you go to the doctor and you say here is my handwritten note let me make sure you have it i'm just a little bit lost as to how we could have this very dangerous situation that indicates the necessity for a long handwritten note and not clarity on how that long handwritten note gets to the doctor obviously that's our position here but that's correct i mean that's that's one of the district only suggest she did everything she did everything she was supposed to do that can't be right under these circumstances at least on the twenty ninth but they are just judge barnes just address your point because i said there are two different and inferences to be drawn the first is that it is not correct when he put them out the second is if it is correct it shows an extraordinary lack of attention what it shows is an indifference if this is all he talked about to a man who has this even based on his knowledge of this over the eleven day period it shows extraordinary into for us that's that's the point of this that's the other inference to be drawn you say that based on his own past knowledge were obviously was held really involved in trying to get these tests that's correct well let me finish plus the the fact of the call out sheet that was the does the fact that you're on a call out sheet indicate anything other than some medical condition in terms of the degree of medical condition that the it when you go back to his no and you see the really the the lack of inquiry for a man who has been put on this call option he's been put on it for a medical reason that's the point of this he is this is a man and he knows at the time was in serious enough conditional eleven days before that he ordered a stress test a specialized stress tests because he was worried about heart disease but again do you have any reason i mean are you disputing the notes that he was feeling great and did not have any concern regarding chest pain now now maybe maybe that's you know it was bad are obviously our position is that at that point she was somebody with the authority to send him at that point send him for emergency care and she and when a nurse has authority to do x but she also has doctor available it may have been a bad call but how can it be deliberate indifference to the doctor she has now lynch of a serious medical care that's the that's the point of our position  about it she called the doctor the doctor gave her medical advice or direction yes i understand and i don't know whether at that point she goes that you know the heck with you you're a doctor i'm going to have sent him to the hospital i don't know what she could legally have done that maybe she could have but is that deliberate indifference not to do we've cited the lamar case and the other cases from this court quincey is one of them which have said that doing something does not exonerate you