dr adams treated him extensively over the course of two years more than two years while the records show that he did see him a number of times but the question of course is what that treatment  otherwise have been treated by the appropriate position then him off to get the x rays and having an m r i well that did was confirm what that pain originated from serious serious injuries but once you have that information you a surprise there in the medical care that you have to the o c c there and they provide but more specifically to this individual is the fact that dr adams when he had that information in front of him and th alkies mr alkies medical treatment or mistreatment i guess and it was not clear to me what exactly you were focusing on with regard to dr dobson or the other two individuals actually said the detailed letter to dr johnson detailing his pain of the treatment he received from dr adams and this letter this is not a matter of now dr johnson being responsible for dr adams about that but the state obviously for whatever reason more like that if they were money rather than retaining an outside medical personnel decide to just treat in this inmate with painkillers and p t so getting as as  fisher as i said i don't believe there really is liability that can be placed on their shoulders but do it too many steps to take but i think dr johnson that letter which i believe my adversary claims should not be considered you know if it had been a matter that dr johnson had not been notified by my client and was completely unaware of the condition that he had suffered in the injuries and clearly he was he would not be what responsible but high sending this claims were in fact properly i think the family claims that really should survive your honor and my client should have the opportunity in front of the fact finder to establish them is that this goes beyond malpractise and simply doctor giving the wrong advice to the doctor being confronted with medical records and having the opportunity to do the right thing and to do no harm and choosing to do the easy thing which is sending him off t court record here shows dr adams did not deliberately disregard plaintiff's back injury and therefore is not liable for an effort that summary judgment was properly granted dismissing plaintiffs th amendment claims against dr adams and the derivative claims against the other individuals point if your focus is on dr johnson judge chin as you reviewed with my friend the outset of his argument  it's obviously true in the record shows that dr adams saw mr alkie on many occasions but a injury a back injury if this gravity in nature seems to demand  treatment or evaluation at least by either a neurologist or neurosurgeon or someone with a specialty the consequences of poor treatment can be so severe as they turned out to be here why isn't it the case that it amounts to a deliberate indifference by failure to make a referral to someone with expertise in this period risky kind of a great country well a couple responses judge kearney number one in terms of  yes i don't believe he's a specialist in those but that brings me to my nd point which is i certainly understand sitting here here in two mission that that referral could have been appropriate but not only do we not have deliberate indifference here we don't even have medical malpractise there is no opposing testimony no affidavit no documents from any other medical professional saying that what dr adams did was wrong so all we have are plaintiff's own allegations that he would have liked to see a specialist i'm sure he would have but there's nothing in this record in this summary judgment record that would allow a jury to refer plaintiffs to an outside specialist amounted to deliberate indifference to this record mean that supported saying but but you don't disagree that in some circumstances the stand here to refer to someone specialized in the particular problem where the risks are very grave might constitute deliberate indifference oh absolutely not band aid yeah right that's right we're not arguing for any sort of blanket rule that referral that a failure to refer can never support an th amendment claim we think at this court has traditionally approached these cases each case has to be decided on its own facts and on its own summary judgment record and that's what we're asking you to do here but you're right the bank think you're on but i think i'm glad i got to clarify that position we are not seeking any sort of across the board rule there you know to the to the regimen that plaintiffs was given here part of that did include painkillers and that's certainly some of the focus of what plaintiffs discuss here today and in his brief but i do want to note that the doctor doctor adams's prescription of percocet was far from arbitrary here percocet was prescribed to plaintiffs beginning in july two thousand and fourteen only after they tried to years worth approximately think ten or eleven months worth of other medications and was unable to achieve consistent suggesting a sort of dictatorial my way or the highway medical treatment regime this is well perhaps not the only reasonable course of treatment this is a regime of treatment that was responsive to the patient plaintiff question of fact potentially about for liability for inattention here our view is that it doesn't you know i think reasonable minds might be able to disagree as to whether that should have survived the fleeting stage and you know just talking about the allegations in the complaint as i as my friend did but now with the summary judgment stage and we think that i don't know but on on johnson johnson was  word but is tied to dr adams has alleged liability so because there was no underlying deliberate indifference by dr adams our argument is that even if the claims against d johnson were were to have survived summary judgment no reasonable jury could find him plaintiffs favor because no reasonable jury could find any underlying deliberate indifference by doctor at  i think the only problem with that argument is that dr johnson that's out of the case and so who knows if dr johnson were still in the case whether the plaintiff could have come up with some evidence of dr johnson but in any event if we just look at what's in the complyin twenty six motion that the allegation was essentially based solely on the failure to respond to a letter that's right which is that why isn't that enough in your view well there are there is case law the name escapes me at the moment but there certainly case law from the circuit saying that i believe it's docs commissioners failure to respond or it might even be docs superintenden various procedures more than just answering a letter well to the extent that's more than just answering the letter and i think again in the cologne case that i referenced there was refer the commissioner did refer the letter to one of his subordinates even though he didn't respond personally so i think that those facts still line up but to the extent it was referred back to dr adams then we would say again that regardless of what happened in the motion to dismiss