good morning may please the court my name is emily grab and i represent appellant mr duane knight your honour's this case presents an opportunity for this court to hold that the th amendment's right to informed consent to medical treatment does not also require that a physician asked with deliberate indifference which is a separate analysis conducted under the th amendment and making this holding court would join the majority of circuit standard had the district court adopted the majority of pro choice which includes a balancing test during the prisoner's protected liberty interest in refusing medical treatment on one hand and relevant state interest on the other apply a balancing test that looks at are the result patient as opposed to the relevant state interests and does not require deliberate indifference so the part about it confuses me a little bit a lot of those cases arrive and arise in the context of like forced medication or force feeding or something like that and that's that's really the polar opposite of what you have here so i'm on a fact i don't like this how do you even undertake that balancing with respect to the state side of the come up with a number of situations as your honor has that you know the state interest me for example have an interest in proceeding with medical care absent informed consent but i think your honor is correct that in this case the application of the balancing test how the balance doesn't always favor you know the plaintiff and you are i think certainly in that in a situation where you know as you mentioned i think plan a would be pursuing with the surgery as originally interventions as quote unquote necessary and desirable for example if something were to come up during the course of surgery if that was necessary certainly a doctor would have authorization to proceed with that what it doctor doesn't have authorization to proceed with and grossman did not tell him what surgery was performed immediately following treatment he was not informed on the part of corrections and it was not until the fall of three months later and dr grossman when asked about that at his deposition that he remembered talking to tonight but he couldn't remember whether or not he had told mr knight that the abrasion arthur plasty had in fact occurred and so the as the record stands mr knight it is the only individual that offered weight bearing instructions actually never communicated from anybody dr grossman or anybody at what han to mr knight for the department of correction protects a constitutionally protected interest in refusing on one of medical treatment the supreme court stated that that liberty interest must be balanced against the relevant state interests there have been six circuits that have looked at the th amendment right to informed consent and health against the prisoners right just and such information as is reasonably necessary to make an informed decision about accepting or rejecting a proposed treatment and the rd circuit does not require and a finding of deliber in these cases court has found that long your negligence isn't necessarily enough for due process direct violation something like gross negligence may be appropriate but that you wouldn't necessarily need deliberate indifference or intent on behalf plasty was a very different procedure with his own risks and benefits it's an optional surgery to address her rightists and has changed the course of the treatment that mr knight can now seek from his arthritis and so we do assert that in a situation where you know while a physician and they may consider different options if one of those options is an elective procedure that the person who is under anesthesia may not want to undergo if given the information that a k at least as i interpret judge roberts question a little bit you know you're talking about in me here and when you look at the factors that dr grossman considered you know that would actually be less invasive than what was initially intended and recognizing that there had already been pretty substantial delays that mr knight had experienced i x or size my judgment and tried to help  undergo a procedure that is as has its own unique risks and benefits i appreciate your point of you know potentially less invasive i understand that dr grossman has argued that given that the a c l reconstruction another doctor or just consult well dr grossman mr knight's position is that he would have required the information as a reasonable patient would would require to make a decision judgment was properly granted and requests affirmation with regard to the th amendment claim it was only briefly touched upon here but there were three bases that were certain were allowed under the screening order one the alleged mistake gnosis of a professional acting in a professional capacity must display deliberate indifference only if the decision is such a substantial departure from accepted professional judgment as to demonstrate that the person responsible didn't actually face the decision on such a judgment at all in this particular case the expert produced by the plaintiff would not go that far when asked that his deposition specifically are you going to render any opinion in this case that dr grossman violated mr knight's rights to my failing to properly inform after the procedure is a departure from accepted practice at all much left much less a substantial departure which is the standard that has to be a reached for any deliberate indifference claim it should also be stated that there is a factual issue there  immediately after the procedure it's attached to one of the affidavits that was submitted on summary judgment in that operative report all of the procedure or of all of the findings everything was included in there and there's no contention here that that was not provided to the providers immediately after the surgery now the deal c providers under the will of the o c procedures are responsible for your night's health care for providing that care enough follow up care they were privy to all of the any information that he requested or that he sought from his deal c providers who were the medial in charge of his his production can't forget the the basis or the underlying situation here that mr knight was a a ward of the concent apartment of corrections dr grossman did not have unfettered access to him you didn't have all day to spend with him he didn't he couldn't have access to we couldn't talk to him and couldn't answer his questions until and unless  actually happened or why weren't both of my knees opened up only one was it was right there in the notes and they were he was also available to the o c providers to be able to talk about that with regard to the final basis that would be the question of whether performed the procedure without regard to the risks in this case as was noticed earlier today that there were three procedures that were performed several of them were not even are not even being questioned here the only ones being questioned is what effort to avoid informing him of the decision to perform a completely different surgery rather than a medical judgment or or negligence well your honor i think we have to consider the circumstances here that's now this was certainly this was it this was not an issue where an effort was made to not to to warn him honor actually the the operative note that was provided to mr nights at the o c providers did include a paragraph on that operative note that explained the post operative   he made it clear that the only reason why you would need a weight bearing prescription is if you are doing this procedure any weight bearing joint in this particular case the operation after policy was was being done in the joint but not the weight bearing joint so was simply because it was not the weight bearing joint on which the procedure in question was being done up relative to the th amendment claim the last one which is essentially the same basis that we have the  amendment claim mr knight's brief argues that dr grossman deviated from accepted standard practice in a way that was so blatantly inappropriate as to evidence intentional mistreatment and that there was a departure from accepted medical standards but that supports nothing more than a negligence claim this case there is no negligence congressional medical malpractise there's no pending state law malpractise claims here it is rick lee constitutional claim it's very clear this court has held on numerous securities that mere disagreement between experts is not enough to establish deliberate indifference a prisoner's dissatisfaction with a proposed course of treatment is not enough to establish deliberate indifference and even evidence that some medical professionals for example like dr hutchinson would have chosen a different course of treatment or would have chosen to do something differently that also is insufficient to make out a constitutional claim for deliberate indifference the supreme court obviously recognized and ask question about the the th amendment claim oh sure what's the what's it mean for a doctor to be deliberately indifferent to somebody you know right to be informed and to refuse treatment what's the context of that the context yeah the that he would agree to allow me to go to plan b well the deliberate indifference standard would be it would have to know a decision that was so out of the ordinary that no reasonable person would do it no reasonable person could justify it could explain it no minimally competent doctor would have done in this particular case he laid out a laundry list of the concerns that he had i see this path elegy i don't know i can treat i can't fix it because it's it's a going to work better does the record though lend itself to a conclusion i've set aside the medical part of that like what you're talking no i can make it better and all that ok i can help this guy but isn't the record pretty clear that he also knew absolutely this plan b procedure not something he conferred with the patient about in other words it's outside you know the consent it's outside the procedure that that was authorized well if you know the words what you wan the question you know more broadly more generally and i think your adversary wants to ask it more narrowly it is true that he dr grossman does not intend no he had such a conversation or that he knew that they had discussed this because this particular procedure was not contemplated prior going into the procedure when before mr knight was put under it was assumed it was believed this is going to be a c e o pursuit i got that but isn't the plaintiff's point that well when you got in there and you encountered the unexpected you know i had a right to to be talked to and advised him to make an informed choice about whether you went to plan b it wasn't up to you it's up to me i'm the holder of the due process right well the question the mental state of the doctor what is he facing there at that point he's there he sees the issue if you think you can fix it he knows it's not something he discussed but in that written consent form that was signed discretion of the doctor so dr grossman looking at that he believes he has his mental state is such that he believes he has yes the consent form of the sign prior says we're doing an a c l but he also said according to that language if i you would have had an extreme scenario where he decided look the blade actually needs amputated well in this particular case if we look at the time she really was in a no win situation that once she goes in there and she sees the you can handle it wash the scene and walks away mr knight could say in the alternative why did you let me suffer for those months and years why didn't you just fix the problem he couldn't win either way he was going to be faced with a lawsuit deliberate indifference lawsuit e is no deliberate indifference requirement under the balancing test for a right to inform however under public which is how the district court analyzed this case even if this court were to adopt abo the constraint must be met your honor it's our contention that it is sort of to use your word so horan as to consent must be had and i would also just like to note for the record in the context of your