issue of what is protected speech all i need to say about the difference between that case and this is in this case there is no question that the speech is protected what dr pena complained about documented and brought to the proper attention were serious concerns about patient abuse and patients being subjected to gross medical negligence there may be some discretion some concern about that particular issue but isn't the real issue here whether or not there's a genuine demonstrate that the alleged retaliatory motives or reasons for his germination are in fact a pretext for the retaliation the first which the district court below did not discuss at all was showing evidence of express opposition to the protected activity within the record before you there is evidence of a meeting great after dr beyond all came on board as medical director which occurred after she was a meet in a meeting of the executive committee which included mr meeker and this response of whom were named defendants in the den pending case by dr pena about retaliation for his protected speech in which dr beyond all described there was a big to do about the fact that dr pena was taking pictures of patients allegedly without the patient's consent she discussed this with nice to meet her at which mr meeker confirmed in his recurrence of in this record there is none to centrally what happened was she threatened him this is the policy that you can't take pictures without their consent and then we come to what is a genuine fact dispute about what   in the meeting next doctor paying it describes that he explains to her that there was a separate policy that required the taking of photographs of unexplained injuries a pair of patients and addition  the medical officer of the day over the weekend he was the acting medical director who could provide authorization for that but that's a separate issue i thought we were talking about photographing your injuries and my question was the narrow one and that is there any evidence evidence concerning the photographs my client's testimony concerning that meeting is that she was attempting to intimidate him from documented in patient injuries and that was the protected activity that he was communicating that there were injuries and they needed to be investigated for the photographs if you engage in any other kind of activity to document patient industries after that meeting yes yes your honor in fact just three weeks before he was put on the administrative lead that led to his determination he documented what he believed to be gross negligence by one of the doctors giving a patient who already had a bleeding condition in her brain a medication that increased the risk of leading on the brain and also  separate medication and one of the counter indications of which is an increased risk of seizure activity that woman in fact did have a seizure seizure that left her in a vegetative state he wrote dr beyond on all which he presented to her and she admits that it was presented to her and that letter is part of this record in which she informed her of what this incident that left this woman in a vegetative state three weeks later is when he is put on administrative leave at the end of which he has terminated so you have that protected activity which we say triggers the retaliation that then went forward in other words he had sued about protected activity came back after a long min that was the basis for the original suit and then continued to report what he believed to be patient abuse and patient being subjected to malpractise and i could just ask you to clarify one thing for me and maybe this question is more appropriate for the other side but  some activity before the ethics committee but he didn't know what the results of that ethics committee meeting was not reflected in the patient file did he have some sort of obligation under the hospitals rules to contact the ethics committee or whoever's in charge to find out what was going on and no i didn't your honor and and what the facts are in this case is that apart from just rules of the hospital there's a doctor have any kind of ethical down by the what the the staff that is actually caring for the patient them telling her that they believe she was on the verge of dying and that c p r would do her no good in just cause or harm requesting that he is she would d n r you know order to issue a r what the rules required was that there be two doctors that can come curt that that was an appropriate thing to do so he called the doctor who was her normal weekly unit doctor and by his testimony and that w not regulation what the guidelines required the policy required they both believed it required two doctors and dr thacker agreed to be the second doctor and then dr pena called the medical director to inform her that that's what that he had written the d n r now going back to your question about these meetings i think it's important to understand two things one medicine is not practiced by committee as dr gapped them gap and then the chairman of the eth committee said in november of the prior year when they addressed the issue they addressed it based on what her condition was at the time and at that time her renal failure kidney failure was not serious or life threatening and therefore at that point  r would not be appropriate the that's november january there's the i p p meeting where they review that that they reviewed that decision and decided at that time again that under the circumstances at that time a condition had deteriorated dramatically she had lost thirty to forty pounds she was clearly dying and as dr gaffney and the chairman of the ethics committee testified in his deposition at the end stages of a fatal illness c p r is not appropriate as dr beyond all the one who made the decision said at that point it has no reasonable likelihood of reversing the situation if the heart stops at that point it's because the kidneys have failed in giving c p r will not change the kidney failure or revive the heart what if what if it's clear from the from the patient's records that the patient you know that demonstrated the patient had showed the matter well i'm glad you asked that question there's a mechanism under this agency's regulator stands for making that clear in our record that's the advanced directive gasman and beyond all in meeker all talked about that the process to get an advance d instructed in the record is you meet with the patient you be sure they have the information they need to make an informed decision you make sure that they have the compasses need to make the informed decision if that's their decision and there is then put in their medical records that are available for any doctor who treats or a notice of that advance directive there was no advance directive in these records either at the time that dr pena was reviewing him or has produced in discovery what they try and say is that she made that decision but it's not in the i p p before it's not in the minutes of the exact of the ethics committee before i'm all they talked about is aggressive care and this agency made the decision not to give her aggressive care they didn't give her a kidney transplant or dialysis and therefore they made the decision that her kidney failure was going to follow its normal course which meant and a matter of time she was going to be faced with a situation where even c p r would not help her and they used that excuse although all the doctors involved would have done her no good as the basis for the terminations which raises the question why were doctors even where doctors disagree you'd say disagreements are normal but here is a decision by a weekend doctor to take it upon himself to universe unilaterally reverse a course of action that the sonoma developmental center had determined was appropriate for the end of life care for this elderly woman who was in extreme heat klein that decision was taken over a substantial period of time with the deliberation of interdisciplinary committees including the violet the committee including the the woman's principal treating physician including her psychologist including her social worker including a client's rights advocate who had been specifically appointed to look out for this woman's rights after those deliberate deliberations a decision had been made and it's absolutely clear in this record that eight do not resuscitate order would be would not be issued for this woman because it was believed that that was in accord with her often expressed wishes dr pea was not fired for his different viewpoint on this matter all that one needs to look to to understand the reasonable basis for the employment decision that was made by dr dog was his indisputable conduct that occurred on march third two thousand and one when he was the saturday doctor he didn't have usual responsibilities for the care of this patient and we would further submit that there is no evidence in this record that would permit any reasonable inference that in fact those were not the reasons of all that he was terminated but instead the true reasons were that he was being retaliated against for some unrelated had been dr the only knowledge that bach dr beyond all recalls having that he had been placed in the past on administrative leave before her tenure in the middle of two thousand as a medical director she was completely new to the institution there are only two pieces of protected activity that there's any knowledge in this record that she even knew about and there's no evidence in this record that she was opposed to the doctor speech let me move first to the  photographic incident because it's only one of two incidents that the plaintiff is relying on with respect to his photographic speech we believe that it's crystal clear on this record that no fact finder could rationally infer from the circumstances of her direction to dr pea regarding photographing patients without their consent and placing those photographs in the medical record that that was somehow a an attempt to suppress the reporting of of patient abuse or neglect first of all that instruction to d normal course of her duties she's the medical director of an institutional hospital she has the right to promulgating articulate to her staff members what the par the policies of the institution  secondly she did got in any way instruct dr pena not to document instances of suspected abuse or neglect if he thought that was appropriate she didn't tell him don't bring them to my attention don't bring them to the investigative staff detention don't bring them to outside police attention that she didn't instruct him don't make detailed notes about what you're doing about what you're seeing in this patient and all that she told him was you can't take photographs without patients consent and place them in medical records that seems to be a reasonable instruction it is a concern that was raised by her not by anybody with whom dr pea had any protected activity complaints in the past but by nursing staff who were upset when they would encounter patient charts and see photographs of these patients in the in the chart if the doctor reports patient clacked but doesn't photograph it isn't there a notation made in the patient record that doctors written concern regarding what do you observe or i think that's exactly right there certainly should be that would be an alternative way of providing full documentation of what whatever conditions were other than the potential privacy concern over what what the photograph might show what's the difference if if what we're really talking about pardon me but if you're for really talking about that's the extent of your honor and there's there's no prohibition against taking photographs with the patients consent there's no prohibition against getting photographs with the consent of a guardian if that if that patient is under conservat ship and presumably the doctor would be free to bring in a nurse or somebody else to look at what what he was photographing in order to have a second witness to whatever the injury was that's correct or of course the investigative staff or the police staff if indeed there was a real suspicion that there was some outside use that going on here i think the point is that there isn't any reasonable bas that can be drawn from the evidence and under the circumstances that's not a reasonable incident let me move to the only other event protected activity that the plaintiffs pointing to here and that is the feb twenty one two thousand and one memo that he presented dr beyond all with regarding concerns about a patient's medication regime again that's an activity that one would expect any medical director to come in receipt of there are no circumstances surrounding this event that even hint of any opposition to that speech by doctor beyond all she didn't criticize or admonish him in any way for bringing that to her attention she took appropriate action with respect to that complaint she felt forwarded it to the hospital peer review committee which indeed is exactly the same procedure that dr pena himself had used several years earlier when he had a different concern about a different patient and and i think we would suggest that that the the inference that they're trying to draw from the us is almost a facially implausible one it almost implies that there's criminal intent on the half of d she would be so upset that someone had a staff position and had dared to report to her concerns about a medication that she would then connive and plot to find a completely unrelated and illegitimate excuse to fire him for that suggests a state of mind of someone about whom there would be one would expect an extraordinary amount of opposition to irrespective of all of the prior concerns about patient compliance when it really isn't really clear in the record that by not abiding by the this ethics plan and the treatment of elizabeth are failure to abide by that would this would result in terminations well there are no i should think it would be undisputed that i can point to to support i can only point to the undisputed events that occurred on that day because there are to my knowledge and i would hopefully expect that there do not exist any really comparable excerpt from a circumstance as these this is really an extraordinary event it's an act of insubordination isn't it is that as well and there there's no precedent for that that's never happened before the cinema developmental your honor i think i think that the problem and of the complaint against him was not so much insubordination although that is a component of it but it's the deceptive communication because because let's remind ourselves of what happened and that's really undisputed dr beyond all gets a phone call gets a phone call at home on a saturday from dr pea he says i've got this patient she's elderly she's fragile she's in decline i think we should institute a d n r order that is virtually all he tells her well he does make a reference to an i p p review review committee she says i don't know what that is she'd only been there six months at the time he says nothing further about it she says well do we have her family's input on this he says i've tried to contact the sister without success she says i think i'd be more comfortable if you about an hour later she then gets a phone call from three people i program director the system director of nursing and i forget the title of the third person and they say do you realize what's happened here there's a d n r order who has been written for a patient who we have long understood to be opposed to this are to this order who has expressed a desire force all measures to be taken to prolong her life and bioethics committees and interdisciplinary committees have deliberated about this and they have chosen because in order to honor her wishes that she have no informed that this patient doesn't want d n r order and that there have been deliberations about this in the past in which to honor her wishes she's no longer able to speak for herself that this order should not be in place he doesn't seem surprised by that information although he hadn't shared with it with her so she didn't they couldn't advance directive in the file your honor in the case of developmentally that the at the medical ethics committee or bioethics committee or whatever it's called the other certainly was has reviewed her case and has directed that no aggressive treatment be administered there certainly was and i would urge the court to look carefully two things both that there had been a prior bioethics committee meeting and also that although there was some disagreement among the staff as to how much this patient really understood they concluded they l o c staff discussed what they felt nisar understanding of the process was and the team agreed that she did understand the choice she had made and they would thought there was some question that absolutely nothing you read that report and knew he understood what you just what you just read he read he read this report he knew that these things had happened that he didn't tell or in addition to that he had had a conversation with dr factor and dr factor testified that he told dr pena well yes i'll be the second doctor if policy permits  dolls state of mind i think that what's relevant to dr beyond all state of mind is that number one she knew and this is undisputed that dr pena didn't tell her that this patient was someone who didn't want to d n r order and that her other trusted staff position doctors factor had told him that she had these wishes and that conversation that didn't happen that sack or didn't say that to him right yes why isn't that a material issue a fact that's in dispute that only a jury can resolve well if there was some if there was some evidence in this record and i do apologize my phone going off shouldn't have happened for the alleged you're right the incident here and i'd like to respond to that which is we do dispute that and in the record there's evidence that other doctors were treated differently and that's a record actually are three ninety scuse me record x or three ninety and three ninety one there's a patient george in which a d n r order is written with the concurrence of two doctors from s t c one the individuals at another hospital without following proper procedure the bioethics the action call for there was not terminations but that a man will be sent to the club having them clarify what the policy was about that would have been an appropriate thing to do here but that involved an accusation either of the doctors essentially engaged in misrepresentation of the circumstances not that i'm aware of but in this case we wouldn't that be a distinguishing client's been treated differently than these other two doctors to the degree that they say it's not because he issued the d n r without following proper procedures but because he misrepresented things to dr beyond all in the record here each of the incidents that they caught say he missed represented something to her he has disputed with evidence for instance they say he failed to tell her that the client's right advocate told him that she wanted c p r the record shows that the client rights advocate did not talk to dr pain until after he had talked to dr beyond all twice that it was in the third conversation that she then told him i've heard from the client's rights advocate so we dispute that misrepresentation the d representation that's already been discussed in his deposition he disputes that in terms of not telling her about these prior meetings his testimony is that on the day he called the very first conversation he had with d and all he told her there was an i p p meeting in which the d n r was addressed they did not issue one at that time but the circumstances are dramatically different now at this point administering c p r were s benefit and will cause her pain and that's what all the doctors say about that point the notion that counsel put out that my client disobeyed the course of action that the institution had decided upon falls on several grounds institutions don't decide on treatment of patients doctors do in the immediate situation they have to exercise their own independent judgment secondly as dr jack the chairman of the ethics committee said we don't look forward to the situation we're talking about the situation it is as it is at the time we're reviewing it at the time his committee reviewed it in november her condition wasn't serious enough that something else might not have stopped her heart other than the kidney failure and therefore c p r would be appropriate similarly an early in january she still hadn't reached the end stages of the final disease the doctor got themselves once they reach that stage i d n r is appropriate because c p r will do them no good the to vance directive notwithstanding and even if they're in a coma this this is dealt with by the experts that are part of the record that reviewed this situation the point they make is if a patient comes to a doctor and says i want my arm cut off having their i'm caught off caught causes them pain and harm and does them no medical benefit the doctor does not have to cut their arm off similarly the i think specialist then you see in the record here of all it's not cited in my brief the specific page but if you look at what he says he says they at the point at which c p r will offer no benefit to a patient it shouldn't be offered to a patient because you're asking a doctor to do something that's against his basic all which is do no harm so if you're doing a medical procedure that's going up with carmen give her no benefit even if she wants it you're not required to give a tour thank you  thank you thank you appreciate your arguments matter will be submitted