while he was an inmate in the defendant's custody the defendants failed to provide the followup orthopedic care that an emergency room doctor had prescribed and as a result mr jeffs thumb healed crooked he endured three years of pain and you lost the ability to perform basic functions like buttoning his clothes and holding a pencil all of this was avoidable and none of it served anything logical purpose the evidence supported jury conclusion that mr jett endured this misery because the defendants were deliberately indifference to his need for medical care he didn't get that visit and who it was why he was harmed by not getting that visit the trial court found that dr petter didn't see mr jet until december twenty fourth which was two months after his injury and it concluded from that that it wasn't dr pederast fault that mr jett hadn't gotten his orthopedic visit in that in the interim the record says otherwise the record shows that dr petter knew long before december twenty fourth that mr jett needed medical care he knew about chest condition but he simply didn't act on it how do we know there are several reasons your honor first mr jeffs admitted medical slips for at least two months prior to finally seeing dr perrin which he explained his need for medical care and and none of us suffer acted on december eighth so about six weeks after his injury he actually wrote a letter to dr perry by name stating that he needed care and had at that point up to that point been unable to get it and finally december know what does he say about when he first became aware he doesn't explicitly say when he first became aware the state argued in its brief that it was december two thousand and one it's not specific about when that was he he admits that he didn't see inference first is that the record shows that dr pepper didn't submit his request until march that was a good two and a half months after he first saw mr jeffs and a good for a half months after mr jeffs injury that point had been suffering constant pain for four months and had lost movement in his thumb it also stated that mr jets thought she had no significant malalai meant when mr jetstar cording mr getz testimony was basically out of line he said he had a hump on his thumb from where the was labeled urgent stated that mr jett had decreased range of movement in his thumb had osteoarthritis and generative joint disease and he needed treatment options a doctor pender's request was out there for at least a month and got no action he submitted it in march and  correct there is a dispute about whether they got the letter and summary judgment mr jett was entitled to the inference if they had gotten that letter and if they had gotten their respective letters and they didn't act on them then they had notice of this condition and they failed to act that's deliberate there are two issues here one is yes they took him to the emergency room the day he entered however when he went to the emergency room that day he couldn't have a spam stat because it was too swollen so the orthopedic chair that he needed he had to get after his initial  from mr jett to dr penner but we also know that there were prior various forms of slips and so on do we know who is likely to get those in the ordinary course of business now and actually have it and why don't we know that driving at us at this point we've had minimal discovery and to ask mr jack to show that dr penner did see or most likely did see all these other things prior to the letter is hard to do without a lot more work in terms of ok who ordinarily saw the slips that came in and sort of what was the ordinary course of business in the present because entirely possible and i'm just i'm just making this up but it's entirely possible the doctor doctor that it would have been up to the plaintiff to present evidence of that but what i'm after is in the can in the in the posture of these cases it's not like this is an ordinary civil case where we've had extensive discovery both sides have their best shot they've done all their depositions and then you put it out on both sides mr jenner has not been able to do much in terms of discovering what we have of course the doctor penner saying this but mr jeffs has not gotten a lot of sort of as or evidence on his side which he with which to dispute there were other things that did the twain his return from the emergency room and his letter to dr fenner and what i'm trying to figure out is how likely is it in the ordinary course of business to the dr pepper would have seen those and the answer is i don't know i don't think that creates a tribal issue of fact with all due respect it's up to the plaintiff to present evidence that dr tener actually had knowledge of this and there is no evidence of that until the letters written on december eight h he was asked the questions in his deposition when dr fenner first know about this and he was unable to narrow that down so it's undisputed according to the record that the first date and knowledge about mr tutt condition would have been december it's indisputed the doctor kind of had never seen him before december twenty fourth so i don't know how he got dr penner's name and no evidence was presented of that point by the talent did he in fact say that he was encouraged to do that by one of the medical record there's no evidence in the record that he required surgery the specialists that saw him referred him out to determine whether or not he didn't need surgery in the end but the record before the court is that they referred him out to see whether he would need surgery so the issue in this case is did dr penner exhibit deliberate indifference by not referring back to an orthopedic consultation within a week of october twenty seventh and dr kenner wouldn't have been able to do that because he didn't even know about the plan at how its condition and tell at least december eighth ok but here is your basic problem we have a man who falls out of his back on october twenty seventh saturday two thousand and one he was taken to the emergency room the sum can't be reset because of the swelling it is never reset it is healing in the  in it's just displaced form and not a medical doctor so i can't give you all the phraseology that i got out of the reports and because it was never a reason that we have severe pain long lasting injury nobody ever did anything to stop that and the question is who's responsible for that was it deliberate indifference was it merely negligence you can't possibly defend on the ground a care you can only defend on the ground that well it was not deliberately inadequate care that's correct your honor and the the evidence is such that mr jett was seen by a doctor   not arguing that at all that if there was any doctor who could have sent the appellant back within a week of that visit would have been that doctor not dr penner but that doctor is not a party to this action for whatever to rise only once in every case seems to me here there was a duty for immediate medical care to someone action after a time specialist who was dr tanzi and apparently dr tanzi referred him out to another specialist so you know to say that he didn't receive any care is not true at all all these specialists referred him to other special and therefore i don't believe you can support a claim and or the government code section because he did receive care ok thanks very much response that inference and i think your honor asked how we know that dr perry should have been aware of these medical slips early on and this is this is part of the answer he was the one responsible for mr jets care according to the record in the record shows that the day of mr jets injury the aftercare instructions saying that mr jett must return for an orthopedic visit was given to the prison infirmary and that a medical assistant told mr jett that dr parikh specifically by name was aware of mr jet's condition so these facts i think support that dr pepper was his doctor and was aware of his condition and should have taken steps  jury finding that doctors had her and peterson award imply there were indifferent to his medical needs i want to take a step back and remind the court that he's not asking for the best care that's available in the state of california always asking mr guy's asking is that he not be forced to endure a broken