the district court to simply ignore that another inmate who was present during mr collaring him to read only heard mr blair a verbal expressed thoughts of self harm and saw him exhibit actions that indicated a desire to self harm mr blair i had a long history at the connotes a county facility to carryings been incarcerated in two thousand and eleven both he underwent a mental health screening during the nd incarceration in october of two thousand and eleven he was considered a suicide risk and was put on an observation level that had not been removed by the time he was released in october of two thousand and eleven in april of two thousand and twelve during the intake process missed a player was exhibiting multiple sightings of bizarre behavior he was  crying he appeared intoxicated he was put in a holding cell for additional observation all signs that he may be suffering from mental health issues despite just that responsible for reviewing those craft requests responded to them immediately as they were required to none of the nurses that received these medical requests and according to their bill count a significant number of medications were missing kegel results ted barrett can ask you a question from moment that says from the facts to the law so there's a dispute in this case about whether  the th amendment or the th amendment should apply here and i want to know whether after miranda versus like county there's really any difference between the two given that miranda dotson objective reasonable in the standard which i'm wondering we are not and you started out your argument by saying that mr palermo's brother had warned the facility numerous times about his mental state and  need for medication i didn't see anything in the record clarifying who mr palermo's brother conveyed that information to is there anything that supports that he conveyed that specific information to any of the particular defendants who you're appealing the judgment as to yes your honor it would be nurse a go or she and i'm sorry don't have her specific spelling in front of me but this was she just whether or not the brother expressed suicidal tendencies she said she didn't really understand because he was she doesn't say be sure but sigourney admits to taking the phone call so although he didn't have a name sigourney says she did speak to the brother sanders the cry is that the nurse's name yes i think that's ok but she doesn't clarify the records aren't clear exactly when she took that call if it was before or after the suicide well i can't say for certain but i'm fairly sure that the phone call came in wire to the suicide attempt the problem is there was a late entry made by some facility numerous times summers's records reflect that she received a call from his brother on sunday i know she disputes the content of it but also disputes the timing of it did his brother indicate that he made that call on sunday before the suicide i don't know if he set a specific time and fairly certain that he said the phone call was a prior to the suicide attempt because mr blair was not receiving his medications as a result of dr butler who was off site not setting them up because of her alleged concern that he had abused those medications within the prior twenty four read they would have been documented in the chart so it's not like but there again with the post receipt for denying the meds that were not revealed until a deposition several cutting off mr players medication would cause or make him at suicidal so i think that's a very good point your honor and the focus  this would go directly to causation maybe in the unreasonable actions or your alleged unreasonable actions we look at something broader but if we're looking at causation and your case is a ttempted suicide and the expert uncontested expert testimony as to dr butler and the medication says that there was a zero risk that cutting him off even cold turkey cutting him off would cause or make him acutely suicidal how do you get around that on a causation perspectives with all due respect your honor i dispute that representation our expert talked indicated that mr blair off cold turkey would increases anxiety and that titration would be appropriate just  the facility had titrated his clinic as a pan in two thousand and eleven during prior incarcerations and proximate cause is generally a question for the jury which we did not reach in the underlying brief because the district  requesting immediate medical attention and being allowed to access his prescribe medications that he's been a long term we know since at least two thousand and eleven because those medications were being provided to him at the facility during the council when when vital checks were done on your client he was his vitals also that they were normal when one of the nurses asked the zone officer to go and check on them he was walking around asking he wasn't checked in thirty six hours after he started making these requests remember there's three in may medical request forms and the correctional staff that you're referring to that's again a late didn't do what the nurse says he did and in any event since when is a correctional officer tasked with providing medical care when inmate medical requests are directed to the nurses specifically for the nurses indicate that she was so there's a dispute a fact as to whether the nurses are being accurate or butlers being accurate and why is that important because what as i am ours i'm having difficulty breathing my heart hurts i'm anxious i'm depressed i need my medications or i could die that would allow her to really evaluate her refusal to a public education in addition didn't have prompted the implementation of policies and procedures are already in place for inmates that are suffering from withdrawal or the signs and effects detoxification and what palermo was describing in those intimate inmate medical request forms are exactly that anxiety depression i need my meds my heart hurts i can't sleep i'm  all signs of either withdrawal or difficulty with detoxification and we know from the outset that there was having issues with intoxication during  dr butler can have a both ways i'm so concerned that he may have overdosed that i withheld his prescribe medications and yet didn't document those concerns and never a lot of his medications never attempted to call the prescribing physician never attempted to investigate what the source of the missing pill or why they start to  the county the arguments and inferences that the plaintiffs are pressing upon the court are only part of the picture including what the brother may have said in a telephone call the other part of the picture is what polaris actually said and what he did and whether any of the particular defendants based on the information in front of them acted objective unreasonably in failing to decipher in his mind what is undisputed in this case was that there were vitals that were check physical check current five hours before this attempted suicide and his temperature pulse respiration blood pressure ten minute observation with a nurse face to face showed that he was perfectly it depends upon which which defendant we're talking about relative to the jailers who had no contact with him other than the initial intake there was they had no information from mr player that he was behaving in an odd way or he was making any kind of expressions of self harm and for that particular nurse who saw him five hours before the suicide she was able to see him face to face engage him she was able to pick up whether there were any non physical signs mr player also testified he had the opportunity to express his feelings to her to talk to her if that's if he had any such concerns plaintiffs plaintiffs  rely very heavily upon what the brother may have said but that even if we assume that there's a risk that we're just gaming the system by by relying solely dispositively what was the brother may have said in every reported decision where a family member or a fellow inmate has conveyed such information there's also been additional information from the inmate himself expressing self harm or showing bizarre behavior or significantly deteriorating physical or mental health or the like we see that in many cases medical request satisfy that here well when we look at his st medical request all he's asking for is medication he doesn't express any kind of physical or mental deterioration  with the nd and rd requests the nurses do check on him in a phone call with the doctor and then they ultimately check on his vitals and he was perfect with respect to those vital those those inmate medical requests danding alone don't create the kind of case that the plaintiffs are looking for here mr player himself admitted that those inmate medical requests don't say he's suicidal that he's having thoughts of killing himself that he's experiencing any kind of withdrawals or that he needs a mental health specialist or a crisis worker and even beyond those inmate medical requests we have to keep in mind that he never once communicated to any of the correctional officers that he was having any kind of mental distress it was thinking of suicide is only meaningful interactions with the correctional officers in this case involved and when he was initially brought in and both he and sars and both testified that he did not exhibit any kind of suicidal behaviors did not mention he was suicidal at one point he's pounding on the door because he's and is shown in that medical questionnaire and as shown by mr polarise own testimony there was nothing that indicated that he was suicidal he specifically answered the question no in his prior detention when he thought that he had suicidal thoughts and saw some self harm he knew how to convey that to the officers and he didn't do it on this occasion a judge agrees by phone we're evaluating the objective reasonableness based on what the particular defendant knew what information they had unfun of them at the time there was a question in terms of the th amendment it is a county position that mr  true and so it would apply consistent with miranda but there is a there is a host of legal principles from within those cases i would still carry over here i don't think that  information was known to the particular correctional officer or the nurses they are replete with the standard as occurred here that the correctional officers may properly rely on the medical  staff and they certainly draw a line that allows that disallows any mere disagreement with the medical decision that that are being made by by dr butler which i believe to her counsel to address inferences that i've been presented this morning those facts do not even rise to a risk of imminent suicide risk that we see in some of these other other cases in the circuit including johnson versus garan mr casper thank your honor good morning colleen casper on behalf of the n c c defendants as seen throughout this case and in this appeal and even as we heard this morning what mr is to retroactively review the facts underlying this matter and apply them with hindsight analysis rather than to be a playable law that is not the standard the standard is one of the ject of reasonableness which maintains a focus on the facts and circumstances at the time that they occurred review under this standard ensures that judge agree spock was correct in dismissing this case and the n c c defendants should be dismissed yes the court would affirm precedent including the bell bashir engaging case that are cited and in comparison to the facts of this case over those cases highlight the fact intensive nature of reviewing these types of claims and both of them support the argument that the individual nurses did not have substantial notice of the risk of the suicide attempt which is really the key issue in this case mr casper this is the edge they need the rd request that nurse read reviewed when a little bit further than the st two metal cold requests and it specifically put her on notice that his mr pearl heiress mother and brother had just died it went on to say he was sick he needed his medicine he couldn't eat sleep vomit but it went beyond just physical attributes it included that his mother and brother had just died why wouldn't that be sufficient for a reasonable jury  that she was put on notice at that point that he was suicidal well a couple of things here are the rd i m r you're correct it did note physical complaints but there are no indications of depression suicidal ideations or threats self harm and what nursery did was that she called a corrections officer to go and observe blair and see if he was in any distress it was reported that he was walking around making phone calls and asking for the remote but then on top of that after he was apparently not in distress he still called dr butler and was told to set up a vitals check and report any abnormal results it was reasonable to rely on the corrections officer report boleros own expert agrees with that that it is reasonable for nurses to rely on corrections officers who are seen to the inmates more often pretty much every time they're out there and it was also reasonable for her to rely on dr butler's request to have the vitals checked if you look at the totality of circumstances i think what she did was certainly reasonable and there was no notice to her that he was suicidal at that point what about the argument that she did not concede to dr butler this additional information that mr pratt lera had put in his medical requests pacifically his conveying the information that his mother and brother had recently died and he might be in distress because well the the fact that he filled out the i am aren't didn't indicate that he was in distress i think is very significant i think the fact that he filled out the booking form and didn't indicate that he was suicidal at that point is significant i think the fact that this is just to nurse reed there i don't think there's any evidence that she saw the booking for i'm just talking about the medical requests that were submitted that we know she did see and your response was well she called dr butler but if she didn't kids a specific information that could be a sign distress to dr butler how does that impact your argument well i think two things she she called his own officer received a report of non stress distress she did provide some information d and whether or not being the totality of that was provided he subsequently had the vital checks and was determined to be in excellent shape with respect to his vitals and the observation that the subsequent nurse nurse scrawly undertook so i don't think sorry to interrupt mr gasper what should we make of the fact that nurse reed after she received this direction from dr butler did not go in conduct  check or have a done at that point but instead left a note for the next nurse without any real explanation well again i think if you look at the totality of circumstances the fact that she received a report that he was not in distress and that he wanted his medications and she was not able to release the medications and again dr butler had made the determination that she was not going to release the medications that it was reasonable for her to do that at that time and again i think that proved to be true when nurse croyde prefer room performs a vital check and everything comes back excellent she's inches away from polaris during the examination  not tell her he's suicidal at that point in fact he never tells any of the nurses that he was suicidal or threat of self harm which i think is a key point that is being overlooked here it's specially given the fact that blair himself it means that he recalls d the vitals check he remembers nurse croy checking him out and he admitted that if he was suicidal at that point he could have said something and he didn't and i think that's significant because his own expert admits that you can't say what caused him to do this he cannot say there is really no expert opinion that suggests anything that the nurses did any of their conduct there is not sufficient notice under developed shar gaden and the nurses acted reasonably in consideration of all the facts and circumstances thank you my name is patricia epstein putney i'm representing dr karen butler in my short time i would like to provide to you a more accurate and undisputed summary of the facts relating to dr butler's limited role in responding to two phone calls that weekend one on a saturday early evening and the next on a sunday late afternoon i ask you to step into the shoes of dr butler for those two phone calls what you're required to do with respect to each name defendant and i believe you will determine that our conduct was subjectively reasonable under the th amendment as applied by the district court i will take each phone call separately i would like to address the criticism that dr about your phone calls were not documented by dr butler she was off site and it's routine in the testimony revealed that when the nurses would call her on the weekend or whenever she wasn't there she would visit on tuesdays that the nurses would be the ones to document those phone calls with regard to the st phone call saturday evening at about five pm doctor about what had been an adventure and involved prior to that time keep in mind that the st medical request has no indication of any physical discomfort it just reflects that mr palermo wanted his two medications and they had not even been brought into the facility so with regard to the st call the medication there is no evidence whatsoever in the record during that st phone call that dr beller had any knowledge that he was feeling unwell the nd in the request occurred three hours after the phone call with d butler that evening so just ask that you keep that factual point in mind the only decision for dr butler during the st phone call was whether she should set up those medication the c pound out of sixty pills twenty six were missing only two should have been missing if they had been taken as prescribed for the tramadol out of one hundred and twenty pills thirty nine were missing only four should have been missing now although jail policies and protocols do not set the standard of care for a medical doctor the cases do hold that they provide some guidance and helpful data and i'd refer to the collins case for that in fact there was a general policy providing guidance to the health care team as to what to do in this very situation there is a policy called psycho tropic medication handling it's in the record at one hundred and eighty seven dollars dash six page one  twenty nine cents and i'd like to read a pertinent part of that policy it says medications are continued for detainees who have been compliant and whose prescriptions are found to be current correct and congress orders so i submit to you that during that st call both doctor about water as well as the nurse who was counting the medications or complying with the jail policy and dr butler was  in her decision to not continue those medications at that time she testified that it would have been a dereliction of duty to continue those medications and the lower court found that her exercise of professional judgment was objective and reasonable as i believe judge barrett pointed out or it may have been touched any doctor ness provided support but that was a reasonable thing to do he himself was a jail physician there is no evidence to support that that was not an objective of the reasonable exercise of her discretion i would point out that dr white thomas wife who has been referred to by the plaintiffs is not a medical doctor he is a psychologist with a website called suicide consultant dot com he testified that he is not competent to offer any testimony on how a physician should handle medications and he in his role as a psychologist the st two medical staff for those questions i will answer the question why dr beller would not have set up a withdrawal protocol at that time there would have been no objective basis to do so the policies indicate that these are individualized determinations and you certainly don't set up a draw protocol for every inmate who comes in drunk or for significantly off should that have raised a red flag and caused her to set up some type of withdrawal protocol or at least a half him checked for withdrawal symptoms my answer to that your honor is that and she testified that this was the st part of a process we know that mr blair was being checked in his own checks every thirty minutes later obviously w hindsight that the nurses call to the zone officers to see how he was doing and to follow up on these the nd and rd i am ours you know there is some armchair quarterbacking that could go with regard to any case the question is was her decision at that point in time objective a reasonable and then i would like to just switch i know my time to short to the nd phone call because as you know things are saturday night it was nurse reid who called her sunday evening after receiving the rd i m r and what we know from that conversation i know the court was asking is there a dispute effect as to what was said in that phone call both nurse read in there and talked about testified because it was six years later they didn't remember every nuance of a phone call what they did know one is that physical distress symptoms were related to dr about later and just with regard to the nd phone call taking vitals is the st step under the withdrawal policies both for alcohol and for substances and so i believe in taking the fight on which ended up normal and mr palermo was in no distress that dr butler was objective and reasonable and say ok now i have evidence of some physical discomfort and let's take a vitals and see what's going on and call me back if start with dr butler's arguments which frankly support plaintiff's case as well as plaintiff's argument dr butler's own attorney indicates that these were dangerous medications that there was a gross amount of missing medications that these were for psycho tropic purposes in this significant amount as judge saying even to kate it shouldn't that have set off a red flag it should have been a flashing red light if what dr bubbler is saying is true that she was so concerned about these dangerous medications that she went to allow mr blair to have one more per script pill for his anxiety and physical pain  she did zero follow up whatsoever as judge saini bhosle pointed out in these type of circumstances this is the exact purpose for the withdrawal protocols vital signs are not the precursor to put a patient or a prisoner who is expressing mental and physical distress vital signs are the precursor to whether or not that individual should go on withdrawal and detox of cation protocols the precursor is whether or not they have abused those substances and need titration and none of that has been addressed by dr butler there were red flags and red lights flashing all over and all of these late entries actually the two of them to support the defendant's case the jury could look at this your honour's and say this is an attempt to cover our tracks i would also know not to turn he's indicated the failures of the county individuals who are responsible for intake and the nurses who are responsible for medical care and dr puzzler who was responsible for the treatment plan made any attempt what ever to look at mr palermo's preexisting history where he was on suicide watch where he was taking the clinic as a pan where his medications were being titrated appropriately in two thousand and eleven if that's not a dereliction of duty i don't know what is what more could mr player to do then scream through his inmate medical request forms that he was in dire need of not only his medications but some attention now whether or not that is a direct indication that he is suicidal that remains a question effect but the thirty six hours where he's expressing distress and the nurses are essentially ignoring those requests forms despite the fact that they are required to immediately respond to them and the late entries where the nurses are relying on correctional staff to make mental health evaluations it's absurd this is not even a close case in plain to supinate the plaintiffs receive name nary a single summary judgment and fact the district court left the defendants off because they couldn't read mr player's mind in twenty five years of practice i haven't seen that in a case that i've been involved with and i've never seen it in case law that is reasonable to the nth degree mr polaris had a preexisting history at the facility he was screaming for attention through his i am ours he was acting bizarrely and crying and pounding during the intake process which required he be put in observation sile another inmate heard his suicidal comments saw his suicidal gestures the brother called after the drop off of the medications and what happens later injuries the correctional staff went to observe mr player he was making phone calls how do you make phone calls in a detention facility don't you have to be released to do those things he was making multiple phone calls and mr patel are said on his initial argument that the nurse who did the vital spent ten minutes with mr blair there is no such  in the record it takes thirty seconds or less to do a vital check blood pressure temperature respiration thirty seconds or less and there's no chart entry by that nurse other than the vitals that were enter