our final case this morning is drinkwater versus larson please the court and good afternoon as the st attorney who gets to say that i'm brady henderson on behalf of appellant they'll drink water and i'm fortunate to be here today on a much narrower and more straightforward set of issues than the district court initially confronted in this case and stead of a multiplicity of defendants and claims we are essentially here to answer a very specific question and that question concerns the deliberate indifference standard to prove a violation of the th amendment for denial of medical treatment when mr drinkwater was in custody under the wisconsin department of corrections there are two defendants or whether upheld these here doctors larson and burnett both of whom made decisions that resulted in the denial of a surgical console to mr drinkwater for a severe hip problem that has been exacerbated by injury mr drinkwater has had significant hip issues going far back as the one thousand nine hundred and ninety s requiring substantial deconstruction something that is complex and difficult to deal with what we're here talking about today is not just the general treatment that he received for that but specifically how these doctors reacted after it was exacerbated by an injury suffered in a fall  to one physician with v o c one other treating physician at the hospital and lists in which mr drinkwater had been treated following his fall both of these individuals believe both of these doctors rather believe that mr drinkwater required a surgical console with an adult reconstruction expert and as it's noted in the record this is something that is essentially a tertiary or watch for mary level referral this is not in the old dr however there is a dispute over whether or not mr drinkwater had refused to see physicians within the university of wisconsin system and it just so happens that the wisconsin department of corrections has a contract that essentially grants u w exclusive rights over surgical console rather at least a right of st refusal to use the contractual term dr burnett was confronted with two doctors saying mr drinkwater needs surgical consultation however a previous visit with a doctor at u w had produced a lack of confidence in mr drinkwater as to his ability to offer effective treatment is there any evidence that dr burnett disagreed with dr l jensen medical opinion there's not evidence either way and disagrees with that but how could we hold another doctor deliberately and different when there's no evidence that he's disagreed with their thought that that religion was committing malpractise or otherwise in other words it changed things and both doctors grossman who was it was a dr grossman as a walk on memorial hospital and later dr la and with the department of corrections both looked at that and essentially said we need a surgical cons now now we've got new problems this particular injury resulted in a sensually a three day hospitalization and it changed things and so to the extent that we have from that now post hoc saying i can rely on  of this report decision one of the things larsen notes after saying dr grossman sees long term problem here we need this can we get this person seen at mayo or freighter which would be outside or more mole procedure he says u w has looked at the x rays doesn't see a substantial change requiring urgent intervention i believe it's his exact words so the only thing that burnett could have relied on at that point would have been a hearsay statement saying that somebody at u w has looked at this and doesn't see the urgent intervention however urgent intervention does not equal surgery you know that for instance this distinction actually happens later in the record i believe on page fifteen when eventual reconstruction surgery is done in two thousand and fifteen and it is under department of corrections it happens at u w with who turns out to be the appropriate physician a doctor heiner and doctor hiders requested in fact noted yes he needs surgery it's not urgent but it should happen soon so that distinction between urgent and necessary already exists in the record and here if we are to essentially suggest that burnett can rely on that as a contrary view  were making a rather stretched inference that he would not under that or rather he would understand the lack of purge and seek to mean that no surgical consultation necessary at that time how does any of this constitute deliberate and difference  the force there is a subjective and objective compare to the deliberate and different standards it's long known in the circuit objectively there is no dispute we know there's a serious medical condition subjective component of courses is at the point of your  position where he is faced with a request based on medical judgment that says this treatment is needed a proper surgical contact or met in our net simply made the decision not to send the mail or some other non u w facility university of wisconsin medical center is a world class and it prisoners are quite fortunate to catch witness there and ultimately a successful treatment eventually happened there five years later that know that the problem is not that he gets to make that decision the problem is per the record here he makes it through entirely non medical means he says this is what the contract says that's what we're doing there's nothing suggesting that he had to fight because it was it was a decision that didn't hinge on th e provision or denial of medical services it's just the place where he's going to go far and that's governed by administrative standards it's actually that have presumably a medical component to them as well but it wasn't a denial of care it was a you can't go to make you know if you want care you've got to get it you debbie as i think i see the court's point in that in and of itself it was not intrinsically a denial in that in theory following his decision mr drinkwater could still go to u w right because then the case went back to dr larson burnett's only responsible for referrals outside the utopias system as i understand the hierarchy here and indeed and that's my understanding of the hierarchy as well that the problem here is that we had two doctors saying this is what's needed he needs to go to crater mayo burnett says no and i and i under it very much understand the court court's point that burnett is not necessarily saying no with the explicit  right we cannot go far enough to say he would have had that exact state of mind but we had our doctors are not saying he has to go to male or fright art for medical reasons they're saying he's refusing to go to the university of wisconsin appointment effectively said i'm not going to do surgery right now in other words i can't fix what's wrong i can't provide you what you're wanting or needing and at that point he refused to transport something that i think it's all too easy for us to look at but when you think about it in custody transport of someone in a difficult physical condition is a big deal there is a very much dispute over what that will be represented later and larson's decision ultimately is what deliberately indifferent to his medical needs to survive summary judgment mr drinkwater had to establish a dispute of material fact that these two doctors knew of a substantial risk of harm to mr drinkwater and that they acted or fail in disregard of that risk there is no evidence in this summary judgment record that either dr was aware of a risk of harm when they made the denials at issue because the undisputed evidence shows that at the time the u w physicians were not recommending surgery or urgent intervention for his condition so turning to dr burnett no reasonable jury could conclude that by denying d larson's request for mr drinkwater to be referred to a non u w physician that dr burnett perceived a risk of harm and disregarded that brisk the written request the doctor or not reviewed which is found on docket fifty eight dollars dash one page and fourteen did not give dr burnett any reason to doubt the competence of the u w physicians the request indicates that you w orthopedics did not think that immediate surgery or intervention was warranted briefing and inmate is not entitled to demand specific care and is not even entitled to the best care possible he is entitled only to reasonable measures to meet a substantial risk of serious harm now by the information that dr burnett ha there's no evidence that he presented sieved a risk of harm in denying the request to be referred outside u w and it was reasonable for him to deny the request based on established department of corrections policy that inmate c u w physicians for their care turning to dr larson no reasonable jury could conclude that by denying mr drinkwater's request to change his medical records in essence by checking a box to say that  math medical records were complete that dr larsen perceived a risk that mr drinkwater would be barred from seeing u w doctors for necessary medical care the record is clear that at the time of this denial it was dr understanding that u w orthopedics did not think that immediate surgery or urgent intervention was necessary and that's again based on deck of fifty eight desh one page one hundred and fourteen and the medical records leading up to that therefore granting his request to alter his medical records would not have given him the nd conclusion that he desired that in other words that he should have his surgery right away and further in the three times that dr larson saw mr drinkwater following this denial there is no evidence that he observed the change in condition to warrant an immediate intervention and nor is there evidence of a specific request from mr drinkwater that he c a u w physician he was released in september of two thousand and eleven and at that time he did see a medical physician of his choice recommended the surgery but he didn't even get it when he was out because he was unable to quit smoking in time he was in and out of custody for for the next several years and he eventually did receive the needed treatment from the u w physicians so the totality of this record shows that at all times dr larson gave mr drinkwater reasonable care dr larson tried to accommodate his request to see a doctor of his choice but that request was denied due to circumstances outside of dr lawrence control now just to address a couple of specific points that the appellant raised we disagree that the that the record shows that the thought that an outside refer was required the medical evidence simply doesn't establish that dr grossman was not a full an orthopedic surgeon but he did note that these conditions were complex and he was going to follow up with u w to see what options were available but in the meantime a pain regiment was warranted this is an docket fifty eight dash one pages room visit and context he fell while he was in the shower may th two thousand and ten he was transferred to a pond memorial hospital promptly where he was diagnosed with a hip contusion which means a bruise ok and the doctors there did not think that it was necessary to immediately transfer him to u w hospital they didn't think its condition was serious enough to warrant that so if you don't even know that he refused to go there in the doctor can made a that he thought that it would be worth following up with you w after after this incident but that immediate transfer was not necessary and further noted that mr drinkwater was refusing to so  all of this just shows this does not rise to deliberate indifference though the record is clear that the doctors after the appropriate months where necessary they made medically for them decisions and for all of these