the mother of eddie burke who died in the warren county jail while he was incarcerated there awaiting trial and was a pretrial detainee when mr burke entered the jail he identified two co complicating medical conditions one diabetes insulin dependent diabetes the other addison's disease each of which complicated the other each of which could cause the death unless he received adequate medical care he ended up dying in the jail and his death was preventable it was caused as the consequence of repeated violations by the medical staff responsible for him not only of the standard of care but their employer's own written policies procedures and protocols that were intended to prevent mr burke's death we argue below that this constituted both deliberate indifference if not deliber indifference than at least objective unreasonable deciding the supreme court's decision in the kingsley case and if the court believes or agrees with the court below that this does not constitute deliberate indifference we appeared this morning to urge the court to follow the path set by the supreme court in kingsley and which has been taken up by the nd circuit the th circuit in the th circuit and apply didn't follow kingsley would you i don't believe so your honor i think we have the liberty and difference in this case and here is why we have a situation when it comes down to mr berg's actual death the day before he dies sudden immediate interruption of that can trigger the adrenal call crisis that we that we believe killed mr burke he was offered as pretty as on that morning he refused his prednisone because he was afraid it would make you sugar go too low now even though in that sort of a situation the policies required that a physician be contacted and told that this young man he was twenty one years old or should the it was the medical technician right who crane who refused who didn't do anything after he refused the medicine so what if he simply refused a standard medicine like dose of an antibiotic or something well in that in that sort of case i still believe that the policies that the s h p has a refusal of medication for the requires that the physician be notified a doctor has to be notified according to their policy it says the physician because my understanding is that position here didn't come to the jail except like ones that repeat month that's right that's another problem that we have with this case your honor and that is that we have a history here it's we're dealing here with a business model your honor where even though the physician was supposed to be there at least once a week under his contract with  never came to the jail he would be there once every quarter once every four months if that s h p knew that they said it was ok and instead what the physician was doing was he was sending an a p the jail and this was a dream with five hundred inmates sitting in a p r end of the jail once a week to see patients that lp ns who can neither diagnosed nor treating illness believed the a p r and needed to see but how does that mean that connects to your claim right now so your claim is that that crane didn't call the doctor even though the policies required that i mean even if it followed the policies which was to have the doctor are present once a week if it wasn't on that one day it wasn't going to work so how i mean are you saying that the policy should have been such that the doctor with on staff two hundred and forty seven or on the grounds i'm trying to connect what you're saying to about the broad policies to the particular injury here yes your honor we're not arguing that he should have been there then and we're not arguing for  forty seven policy what what we're arguing is that the nurse should have called the doctor ok and and what happens what happens in this sort of format and is that there is business as usual and business as usual sort of devolves to a situation like judge moore raised where an inmate refuses his his tylenol or is antibiotic well you know business as usual you don't bother the doctor over that the problem was was mr burke was not business as usual and to receive adequate medical care the system has to adjust to mr burke under this system your honor time and time again in the court can even look back and judge tranches opinion in the shadrack vs southern health partners case time and time again with this company it's the inmate that has to adjust to their system and that's what mr burke was trying to do three or four times previously during his incarceration because they never got his blood sugar under control so you've got a sensually a twenty one year old drug addict who is monitoring and managing to the best of his ability his own medical care because the system won't do it for him they have their system and their system says gee we don't bother people when somebody may be refusing there any particular sunlike that he you know he so he's he's refusing his presence of we just don't make the call that's their habit and the system just fails to adjust but do you need to show then that the medical technician knew or should have known of the danger burke not taking his pregnant no no your honor and we don't suggest that she should have been trying to make that decision what she was supposed to do was call the doctor but let's assume that she had a duty to call a doctor a constitutional duty that duty can arise under the at the moment from a jail policy so what evidence do you rely upon that that was the cause of his death the delay the failure to call a doctor or the delay in receiving treatment well the it wasn't the failure to call the doctor or well the fact that he didn't get his present his own was what caused the death and our expert has said look when you've got a suit you know i didn't get its pardons on and he refused refused again how how do you go from there to liability what evidence do you rely upon that somebody had a constitutional duty to do something that then caused his death it's an expert our experts testimony your honor i p r and says if you have a situation like that where a nurse or a med tech is offering an inmate their medication and they refuse it and you need somebody to explain to them what the consequences may be if after you do that and you actually have an informed refusal that could imperil the life of the then they need to be put in a situation where they can be carefully monitored to so that the medical people can respond in case there's a crisis that didn't happen here why is this more than mere negligence on the part of the jail people because your honor we have here a failure not only a failure to meet the standard of care and an intentional failure we have the failure to follow written policies procedures and protocols you know when when justice marshall and in still the gamble was distinguishing was st articulating the deliberate indifference test and was distinguishing that from negligence the negligence he was talking about here on or he called an accident and innocent misadventure or and even in the adverse to failure to provide adequate medical care you do not have inadvertence when you fail to meet the standard of care and you certainly don't have it when you have written policies and procedures that tell you what you need to do and which is particularly critical in this system where these inmates are basically taken care of by nobody other than l p s in our ins there's nobody in the jail that can ever truly diagnose or treat their illness so the company has written policies if a then b and if you disregard that and they are disregarded your honor with this company again and again and again that is more the next it's just simply is and it's costing i would i would recommend the court look at the nd the th circuit's decision in gorton don't don't don't adopt don't characterize this test as object deliberate indifference or requiring recklessness and i'll get into that in a minute but what's important about the the th circuit's decision in gordon is they give the elements and those elements or simply one a defendant as here made i ntentional decision there was no inadvertence to such decision put the plaintiff at a risk of serious harm three the defendant failed to take reasonable steps to abate the risk and for such failure failure caused the injury but at the same time i urge the court they amakosa brief that was filed with the court urged the court to to adopt  a objective deliberate indifference test the nd circuit is talking about recklessness as an element i urge the court to avoid the use of those terms for the very reason the supreme court lee discourage the use of recklessness in the court's instructions it suggests a subjective intent that they're trying to avoid with an objective unreasonable this test lee spent a lot of time focusing on the management of mr burke's diabetes and also on the standard to be applied as far as whether it should be objective and reasonable ness i would submit to the court that you all have already keyed in on i think a big problem that the big problem for the pallet plaintiff says which is you have to demonstrate that each individual defendant was individually involved in the deprivation of an inmate's rights and that that deprivation is what resulted in the injury in this case mr burke's death this court does not even have to reach the issue of objective unreasonableness or subjective intent because there is quite simply not sure that you've even accurately here for is what you're posing counsel argument is i think you've accurately described what it was before the lower court that was basically focusing in on the management of his diabetes today  loss i just missed it i thought his argument now is is almost solely focused on what they've failed to do after he refused his his dosage the day before his death i guess i was referring your honor to this discussion about a failure to manage is diabetes properly and relying upon the inmate to self regulate his own condition mr bell's i was arguing kind of at the end but i i think i think that's absolutely correct that what we need to focus on at the time that he refused that dose i just want to ask you the same question i asked him and that is what evidence is there in the record of causation your honor there is no evidence in the record of any causation of the actions or in actions of the medical technician with respect to the causation of mr burke's death which is the cause of his death in light of what the evidence is here the plaintiff's expert dr falls cause his he has opined that it was a sudden a coronary arterial spasm that caused his cardiac arrest that was unrelated to the prednisone and was unrelated to anything any other any other condition that mr burke had he just had a coronary or tiriel spasm would be something that the ship's dependence wouldn't have any control over it would be a sudden thing that would happen so that is clear in terms of looking at the this in summary judgment  show as to what what what your client should have done once he refused what what your fellow counsel has argued is they should have counseling and they should have told him what the consequences would be which of course suggests the something in the record that he didn't know what the consequences that's correct and that is not that's not an accurate reflection of what the evidence was your honor mr birkhead as a child i think he was not her to and been diagnosed with these conditions had a long history of being hospitalized and in the philippines where he was managed and the testimony from his mother was that he was aware that the sudden cessation of taking the prednisolone could result in sudden death and all sorts of other horrific complications and mr birkhead been non compliant with his medication over over the years i mean he was essentially homeless so a lot of times you could in doing is that he was not receiving prednisone at the jail for the st few months medication for it generally speaking what happens is the nurses follow up on people's medications he should have been flagged but the testimony from plaintiff's expert was that didn't cause this issue with the prednisone once he started it it was fine he was he was able to function it was doing what it was supposed to do he just couldn't stop it as he did so with respect to the the policy with regard to the refusal of medication what the medical tech should have done mr lee is accurate in that he says that there is a policy of of advising the physician in this case the physicians local my guess would be that a p if as the physician or the a p r and there's no timeframe in the in the protocol is how soon one has to be contacted and it wouldn't make any sense to say fundamental by a waste of the responsibilities of a jail to offer appropriate medical care to the prisoners if somebody refuses drug that is essential to their  life living how how could thing well our policy is one through weekday p r n will come to the jail and will review your refusal to take this and that is a fair a fair point i don't think it rises to the level of a constitutional violation and we don't know that we need to consider that in this case given that mr burke voluntarily and with knowledge released everyone based on his refusal of the medication furthermore there is absolutely no proof in the record that had mr burke been told this could cause a problem that he would have in fact decided to take the practice out because in point of fact he was absolutely right pr can exacerbate your blood sugar and can cause fluctuations and it he was not an unsophisticated individual with respect to the management of his disease and it is not as if anyone was just being left to their own devices diabetic frequently are able to gauge better than medical professionals what's going on with them with respect to managing their their blood sugar and so deferring to this patient is not is his or not ignoring diabetes situation that very day right well mr burke is not allowed they are not deferring to him when he is requesting something above and beyond what is prescribed or owner so what happens is blood checks are done at meals in bed time after meals your blood sugar can go up that's what had happened with mr burke but he's given insulin at those times sometimes he would defer and say i don't want a full dose i want to have to that's fine you can decide to take a half of your blood pressure medicine in the morning if you want to which you can't do is just walk into the pharmacy and say give me more pills that has been prescribed so mr burke was actually requesting additional insulin outside of the prescription that was intention was to go back and test him again within an hour or so to see if his blood sugar had come on and then make some sort of determination call the doctor or whatever to see if there's no medication was in order in any event regardless of that decision his own expert testified that that didn't cause his cardiac arrest or his death there's nothing in any of these policies that caused the skip dose or the miss doses none of the defendants put up a barrier to him receiving his medication so mr mr burke's decision voluntary decision i think in addition to the fact that there is no independent causation supports the grant of summary judgment in the favor of all my clients and seeing that my time is running out i wanted to kind of address briefly the subject of intent unless the court right i was going to ask you what about your view on the kingsley test and would it make a difference in this case for you with respect to the kingsley test there is nothing in that decision that suggests that it should go beyond excessive force as we pointed out in our brief excessive force cases are different from medical treatment cases in that they inherently involve an intentional act there's no question about the subjective intent to use force it's a question of degree of reasonable mess so it's not it doesn't transfer well to an inadequate medical treatment case furthermore with respect to the castro bruno and gordon cases although the courts do say that they are taking objective of reasonableness none of them have gone as far as mr bell's leewood which is just a simple violation of the standard of  that's constitutional is ation of a medical malpractise case i mean it's that's all it is gordon bruno and castro all still have this component where behavior that is how the formulation of objective and reasonableness and those three cases differs because already this court except for the fact that it doesn't have to be a subjective intent and i did it i do it again if i had had a chance recklessness can suffice to satisfy what the six circuit a pas with regard to subjective intent i think all that object and reasonable miss him do the way that it is formulated in those cases is cause confusion and lead to amendment but under the case that we cite from the supreme court the due process rights have to do with a deliberate decision to deprive someone of someone of their life or liberty designed to prevent affirmative abuses of power once again that is and denote some form of intent take your opponent is focused on the po communicating a prisoner's refusal to take matters except as you suggest once a week to the reviewing a p r in person could that not be reckless satisfy the recklessness test whether you're calling it under winkler or under kingsley to have a policy that does not communicate beyond a technical person who's just taking this refusal to accept medication with regard to what how it actually works it's not simply when the a p r enter the doctor comes on on the day all of those refusals are reviewed if there is as mr bell's they says some sort of significant concern then then it is true and they are called they are available on call all the time with regard to whether that policy is reckless or not it seems to me that that's something that would require expert proof about what what a reasonable company policy ought to be and whether this complies with the industry standards i suppose although quite frankly simply violating a policy without more blanket on the case but simply refusing simply failing to comply with the policy without more is not sufficient to demonstrate that you feel that you have been reckless or committed a constitutional violation i don't know if that addresses the court's concerns or not any individual's deprivation of this individual's rights you can't connect that to what caused his death even even absent his knowing refusal you could take that concern away whether or not signing this refusal was sufficient it's still not sufficient to connect thank you thank you very much honour's the evidence in the case indicates mr burke refused his prednisolone because he was afraid it was going to make his sugar go too low was absolutely no evidence that he knew it could kill him there was absolutely no evidence that anybody told him it could in fact the next day this was not a young man who made a determined decision to kill himself by skipping his prednisone now can salie does not say anything that limits it to excessive force to the contrary when it comes to their the supreme court's rationale for moving to an objective unreasonable this test approach drug detainees it's all about the pretrial detainee not the nature of the harm they're talking about the fact that a pretrial detainee is entitle to a presumption of innocence nobody's decided that they are that they should be punished for anything and so the and so necessarily whether their punishment is sufficiently want to constitute a cost a cost issue of deprivation never enters the picture and that's what every case that's considered it we've cited them here miranda gordon every case that has that has considered and  analyzed the philosophy in the language of the court's decision has come to the same conclusion importantly when the supreme court ruled in farmer v brennan about the subjective intent test they  because police officers or correctional officers are making split nd decisions in difficult circumstances the supreme court in farmer v brennan considered deliberate indifference to be a lower standard that should be applied to things such as medical treatment where there is time for consideration in contemplation of one's acts and the likely consequences and so with that in mind if the supreme court thinks excessive force in a in a in a in car in a car sort of context should be is subjected to an objective and reasonable n'est test i think that takes that embraces and takes into account the the lesser test of deliberate indifference that they  applied to two transgressions other than excessive force and farmer v brennan i would only say your honour's that a system that forces a twenty one year old drug addict to treat himself and then turns around and blames him for not getting it right needs to be changed and the law exists for that purpose and we're this circuit to adopt the