we have raised three issues before this court and they all relate to the issue of the liberated indifference under the eight amendment our st issue that we have asked the score to examine is whether the conduct of the three individual defendants physicians doctors rhodes jenkins and miles amounted to deliberate indifference based on the treatment that they afforded the inmate michael vincent who subsequently died of the injury complained or nd issue that we've asked the court examine is rather  there is deliberate indifference maybe perc where an individual goes to the physicians and complains of a specific injury continually over twenty times and on each occasion the only medical procedure employed by the three physicians and nurses subsequently was if physical examination and the prescription of generic medication and am i correct counsel that this symptoms the complaints changed over time that there were some that were repetitive but sometimes the symptoms and changed and sometimes the medications changed to you do you agree that the medical professionals seem to listen enough to prescribe different methods of care over this long course you know you're on and it was only six months what i would tell the court in addition to the medical documents throughout those documents there is this consistent complain of left nor abdominal pain and that is what we focus on we have not accuse them of  that suggests if it's a non obvious injury you need or or if it's an inadequate treatment case you need verifying medical evidence doesn't really hurt your case because as i understand it your expert report was stricken for some type of violation and you know you didn't dispute that so if we're in the domain of the case law that suggests you need verifying medical evidence it's outside my comp and it's i would say dispute whether abdominal pain is a symptom of that what seems like a rare type of aneurysm that happened in my case what i would respond to and that context your honor is the issue of deliberate indifference is more about the adequacy of treatment as opposed to whether or not you absolutely have to make a diagnosis a correct physical examination each of the nine dollars to ten dollars times the physician saw him and then there are other fifteen times that the nurses and the nurse practitioners also examined him that should amount to an adequate that does your drinking need i thought because you at least concede that there was some treatment you just think it was woefully deficient or once were and then once were in an adequate treatment don't you need for instance an expert or another doctor to come in and testify that this was this was an official they should have done this yes and this instead of testing this falls well below the standard of care and i just don't see that you have that type of what i would call what  cases of car verifying medical evidence so you have you had you have what they did and consumers i couldn't do much but don't you need this medical evidence confirming that they should have done much more i think you need medical evidence confirms that they should have done more frankly if you're actually doing an analysis of a medical malpractise case more than an eight amendment deliberate indifference case i think and there are decisions that are cited in  in my brief to the court and there is also one that's particularly important although it's of district court case the jones case where the court can use and use an it's experience and common sense there any evidence that had they done they'll have tests looked at them that everything proper way that anything would have been different but you don't need to go that far in your honor if the basic concept is you've  reviewed them why would you need to show what they would have done that that by itself should be perceived evidence that the physicians did not properly treat the patient we judge whether some of the care was grossly inadequate and when you say it's grossly inadequate why because you didn't do these other things x y and z but are they are x y and z consequential i mean don't you need an expert to testify yes you should have done x y and z and in my medical opinion it was grossly inadequate because you did not do x y and z because x y and z would have or could have perhaps led to the proper diagnosis but i think we have to start with with say that they were ordered correct and the fact that they think it's that you say them only that the record does not show that they grabbed them correct does that the stablished that they were were not read so many general purposes a does i mean what how are we to assume anything else but what's in the medical records we have to proceed on the assumption your honor that the medical record speaks to the universe of treatment accorded an individual that's the bible or doctrine as to what they did whether there was a discussion of modern injury when it was a treatment it's all reflected in the right it's your client's burden so i'm not i'm not confident that you're correct that the absence of the readout in that deposition i suppose you asked the question were these read were these the test administered and were they reviewed i suppose in the  submission to the court is you are allowed to go on once before you got to the medical records the medical records should speak to the universe of the treatment are your son the defendant have the duty to assure itself that it the right because because here is what happened we got the entire universe of the medical records we have one hundred and ninety six pages of records and so we read from the time they started treatment for to specific condition for the time your argument then i think you've answered the question it's not there right it's not there all right but you so this is on summary judgment obviously so you did you depose the three defendants right the individual doctors two were aware of and doctors norris you the frustrating thing for me your honor is i was not involved in any of that so i am speaking from a kind of a nd perspective would respect to what happened  rises or falls with the underlying th amendment claim against the individuals such that if he fails to prove that his own rights were violated then he can establish some of the nokia claim automatically that establishing the policy council that's not your position that's probably the policy in prisons all around this country so it's that it's the operation i'm assuming it's your argument generally right that the docklands davis did a very thorough an excellent job as he always does judge cox adopted it in full specifically addressing counsel's objections i would only have one thing to add to the our in our the court has said that with regard to the objective component the aneurism itself actually didn't rise to that level because a it had not been diagnosed by a physician and number two it obviously could not it would not be obvious to a layman and so she said that the court said that as to the aneurism itself it fails to satisfy the objective component however then the court said that while they were all these other symptoms they were nonspecific they were changing at times and that could satisfy the objective component i would argue that it still doesn't under r which came out after this opinion under reinhart there was care given for those complaints to back complaints the the g i complaints and some others that he had he was given treating back pain or whatever ok it was adequate but we're not talking about back pain or about pain or ism so what do we do about this idea that you should have done more that might have waned you have to figure it out or diagnostic seems like that's the claim right and and again that this court has held that it's not the it's not the job of the court to nd guess medical judgment as to what should be performed or even what tests had they been might have shown it there is no evidence on this record number one that any of these tests any tests that they're asking for would have shown this that ultimately proved fatal in fact all of the expert testimony that was presented said that this type of condition is typically manifests itself shortly before death shortly before it becomes a very significant problem and we also know from the record that these defendants had their involvement with mr vincent and had ended some weeks and in some cases months six months i think in the case of one of the doctors prior to his actual death so we do go back to what evidence does the plaintiff have on the record that that that there's objective medical proof on the record that the inadequate treatment being complained of actually caused the harm which which of course would require expert testimony in this case because none of us in this room to try to treat the injuries in terms of aleve alleviating pain but they didn't seemed seemed to actually do anything to try to cure whatever was causing in the record seem to be quite  he was suffering quite a bit like so there was he said he told the e r that he had been vomiting forty five days straight they were he was found vomiting and like in a fetal position crying on his  the prison when he was sent to the it seems like they they they checked on him they did basic physicals but obviously something was wrong if you're vomiting for forty five days straight and i'm not certain that i see anything in the record on w doctors tried to try to figure out what was wrong other than basic physical exams well your honor that they did send them to doing waters hospital which there which they can do more thorough an analysis they did try to change his diet which he apparently refused so i don't think it was merely that they were trying that they were just giving him aspirin saying you know colace in the morning it accepted th limited stuff that physicians can do in a correctional facility they could they did what they could do they sent him to doing waters they worked with a dietician they changed his medications the fact of the matter is that it's kind a hard to cure a an a m l a t when you don't know what it is and they were trying to figure out what it is in retrospect coulda woulda shoulda if they had sent them out might they have found something perhaps but but again with respect to those complaints the back pain the vomiting etc our experts have testified that those aren't related to what actually caused him to pass which was the in your ism which they're all saying those symptoms don't manifest themselves until it's critical which was well after the involvement of these  defendants so i just think that in light of of ryan hard in particular this case fails on the objective component even if however the objective component were to be satisfied we then obligated to show that each defendant knew all of the problem that was serious and significant that made a conscious decision to do nothing or next to nothing and actually executed that with full knowledge to a level approaching criminal negligence and i just don't see anything in this record that would that would suggest there's that level of of near malice most and i don't concede this source suggested but at most there could be negligence this is not a negligence case a little bit confusingly to me counsel in some of his papers has said that well defendants were successful in convincing the judge to look at this as a malpractise case we did nothing of the sort we don't want this to be a malpractise case we're quite happy with this being a deliberate indifference case what is your response on the middle argument does it rise and fall solely on the failure to make of the individual i believe the controlling case law yes does say that your honor i am aware and forgive me i can't cite it but i am aware of a case where there is a very very narrow exception that i think that case is very easily distinguishable on the facts it seems logical to me it's so i suppose the individual that provided but deliberate indifference to the proprietor of just failed to sue and so the plaintiffs are three of the four hospital agents but individual so how would you respond to that notion that there can be deliberate indifference by the institution as a whole including an individual who is not sued and the only reason why the individual claim fails is because the individual who really caused them in the violation was not a part of  claim but even if they couldn't even if just seat hypothetically regardless of all that m n l claim can just stand on its own without any individual liability or potential individual liability l claim i mean it that if they're seriously understaffed every you could argue that that that policy that that's the that's the institution right in so let me address it sort of generally and then and then specifically so generally let's say let's say that there was evidence of understaffing well then you have to show how that policy actually was the moving force behind the specific injury of this plaintiff which you can't do number one number two there was no understaffing the evidence on the record affidavits that are uncontested and  i believe also personnel records this facility was staffed with five dollars to six dollars physicians at all times at least being on call that exceeds n c c eight standards of three five for a facility of this type so there was no understaffing to begin with and they can even if there were plaintiff's burden is to show that that that particular constitutional violation is the moving force behind is his his injury and had it been but for that it wouldn't have happened there is just nothing there but you're saying only about to them you know they have they you have to prove you have to sue and proven in violation against an individual or say you're a could take the understaffing argument let's say that understaffing did cause an injury there should have been a guard at my cell and that wasn't me committed suicide or something and it's an because of the understaffing what i have to say to whoever the supervisor or whoever the person was that decided what the staffing was in addition to the entity to bring that claim or you saying i couldn't just say there was a policy by x corp to understaffed and that's what led to my injury i'm just i'm not sure i understand the question can i give you a that if you could actually point to a policy not just a suggestion of one but you know some kind of member or you know something written saying that we realize that and c c h the standards requires x number of physicians at this facility you know what we're not going to do it i could see where you could go forward you know i but but you have to show that that's an actual policy so you have to show that that's an actual written policy or you have to there are the three there's the training which which doesn't apply to this there's acquiescence of a policy or acquiescence of something that you know is going on but you don't care i don't think that really neat lee applies to this so i think what you're dealing with is the rd one which is an actual policy so st of all plaintiff is obligated to show that there is an actual crys in policy that we're going to understaffed this facility there isn't one number one number two it was an understanding according to n c c eight c standards which the state uses which everybody uses so you know these are interesting hypotheticals and i think it would be interesting someday for the court to address whether a minute claim can stand on its own i think that would be i think that would be rare you know i couldn't articulate what i think the standard should be but i think as a ok thank you that they they sent the deceased to the e r they did in december of two thousand and eleven they stabilize his condition and then they said if the symptoms worsen or persist you should bring him back he lost and fourteen pounds in the st month after the e r visit he continued to vomit he continued to lose weight and for the next five months they recorded it they did their physical examinations and they never sent him back to the e despite those clear instructions with respect to the magistrate judge she just got on the bench she's new don't know if there's a history of of cases there but the rinehart case i think it actually involved corrosion and in that case the narrative is clear they did everything with respect to that individual they did the m r i is they did the cat scans they did all of a sophisticated test and actually stabilize this condition and then i think it kind of came back up maybe a year afterwards so that case is clearly not a pleasurable to this matter here this instant matter  argue some issues but after i read the decision of the magistrate judge where she struck the our expert her reason why she struck the expert from or for purposes of the summary judgment but then wrote that she would allow this expert testimony at a trial if the case survived summary judgment so clearly she was not on to the impression that striking the expert would be that an expert was required for purposes of summary judgment and i would ask the court to fall in that same irrational and hoshi she struck him but she said if you survive the summary judgment we will allow your expert to participate at the trial thank you thank you house or the case will be submitted and i think that ends our calendar