court my name is rachel her on behalf of the united states i'd like to reserve three minutes for a bottle alaska law limits noneconomic damages in medical malpractise suits where the patient is severely injured to four hundred thousand dollars unless the plaintiff can show that the physicians were reckless this is a tragic case there's no dispute about that but the physicians who treated ms rivers were merely negligent not reckless under alaska law recklessness requires an unreasonable risk or an extreme risk of physical harm that is substantially greater than that which is necessary for negligence in other words the physicians must have consciously disregarded a substantial and unjustifiable risk here at the physician's conduct in this case just not rise to that level in fact the district court criticized the physicians for a hearing to strictly to the standard of care here that's the modify do criteria and hearing to strictly to the standard of care can't be recklessness it's simply not such an extreme departure from the standard of care that would be necessary to support a finding of recklessness now counsel point of makes much of the fact that there were two experts dr levy a doctor who was there who both testified that in their opinion th experts did testify to that and the government's various experts provided contradictory testimony and we don't challenge the district court's specific factual findings of the error of the areas in which the treating physicians opinion the i've read the testimony you both they seem to know the record extremely well when they testified both pined that the actions of the doctors here were reckless why couldn't the district court in making is that terminations rely on the testimony of those two experts the district's entitled to rely on that testimony but we think that that finding is clear error here the district court found four instances where the treating physicians erred and the treating  this regard the testimony of other experts would we be having the same discussion i think we would your honor and again we knowledge that this is clear error of you it's an application of the law to the facts and the plaintiffs were qualified to testify as they give me the plaintiff's experts were qualified to testify as they did it but but we believe that's an error we believe that the four instances of deviations from the standard of care that they just identified simply don't amount to outrageous enough conduct to support a finding of recklessness so how did you know you have basically two different plausible conclusions from this disputed evidence in the district court made that determination cited on one side of plausibility what how would we reverse that is clear because we're kind of talking in principles at this point but how can that be clear air  given the two different sides and the actual testimony that was here so the alaska supreme court has addressed the issue of recklessness versus negligence multiple times and in each of those instances it has made it clear that recklessness requires just an extreme departure from the relevant standard of care it requires to regis conduct it requires a conscious disregard and the metaphor that the alaska supreme court has used in that their statement use and that has actually been real facts not a metaphor and in at least two cases and is if i'm a plaintiff excuse me if a party sees a red light or stop sign acknowledges it and then decides to blow through traffic anyway that's recklessness whereas if a party that fails to see the red light or stop sign through inadvertence or distraction and drive through an intersection that's negligence and here the physicians saw the indications that she might have infected endoc they followed the proper standard of care and they followed him perfectly but they identified the proper standard of care and they followed it you know reasonably well others would say well you blew through the stop sign because  isn't this that blew through the stop sign and that's a judgment that the district court made we don't believe so we believe that the physicians here they saw that they saw the yield sign they saw the yellow light which was the the diagnosis of possible i e given at bethel hospital by dr woods and what they did at that point is follow the standard of care identified to modify do criteria and treat her with antibiotics for four days while they conducted the various additional diagnostic tests that they were supposed to supposed to complete and they took two initial echocardiograms they reviewed her blood cultures and they monitored the four minor criteria for id that she was displaying upon admission and and then when according to the modify do criteria and those minor criteria had resolved within four days of antibiotic treatment they rejected the diagnosis of i e again the modified two criteria allows rejection of a diagnosis of i e if the symptoms result excuse me if the syndrome resolves within four days we don't dispute that the district court erred by not scuse me that the physicians erred by not paying sufficient attention to the other indications of infection that are not part of the modified due criteria and but simply put forward that hearing to strictly to the standard of care and which is what the district court sat on on pages sixteen and seventeen of the excerpts of record and which is what the district court said the physicians did wrong and hearing to strictly to a stand care and simply can't support a finding of recklessness now can i prove what you're asking us to do and the difficulty of the task lays before you you're asking us to reverse a district court's decision on recklessness versus negligence  first question i have a couple first question do you know of any cases publish or unpublished where this court has reversed a district court's factual terminations of recklessness certainly not applying alaska  about any any law anywhere i'm not familiar with any so this would be the first time as far as you know as far as i know that the second question is that i understand you're making about that they were following the standards of care and it's wrong to punish them in a sense for saying that but this is clear error of you so you have this what we have to do now is we have to see what do the district court just totally botched for example the district court said i'm relying on witness smith two experts testified it was reckless and i've read the transcript there is what they said and one of them said it was crazy what happened here so if the district court is relying on these two experts both who say it was reckless one of them says it was crazy  where's the clear air if that's what it was the in no one's arguing that testimony was improperly admitted that's in the record so again where how does a court clearly error if that is the evidence it was relying on i understand th distinction we can't simply look at negligence and severe harm and and say that that was recklessness here we don't dispute that the plaintiffs experts did that testimony is in fact in the record we're not arguing that it was improperly admitted but we  think the basis of that testimony is essentially saying that because the harm to her was significant it was reckless and we just don't think that that's an accurate statement of alaska law and we have where i'm looking  the district court's decision could you be more specific on what in the decision you think the alaska law and so the decision on page twenty one that's where the paragraph in the bottom of page twenty one i'm going to the top of twenty two that's where the district court discusses this issue of recklessness which again is relevant for the cap on non economic damages the district court states the standard for recklessness correctly  we don't think really did the analysis and necessary for that the district court on pages sixteen to seventeen a criticizes the physicians for hearing to strictly to the standard of care and we think that's just not a faithful application of alaska a lot of hearing to strictly to the standard of care just can't be a sufficiently extreme departure from the standard of care to support a finding of recklessness of conscious disregard our conscious indifferen created an unreasonable risk of physical harm is there something wrong with that determination yes your honor and under the modified you create your ia if dr shellenberger who is the cardiologist could have read the echocardiogram in a way that ruled out e right that is the district court is conflating and negligence and recklessness in describing the various ways that the physicians would have been able to rule out i sure i think the best example is this court's bunting case that applies alaska law and ask the question of whether the physician there was merely negligent or was grossly negligent and the court used the definition for recklessness in defining grossly neg context in that case the defendant was a physician who treated a patient who had been in a plane crash and was pulled out of a freezing river the patient had an low blood pressure hypothermia and a punctured lung decided to treat his hypothermia first and that was the wrong error is this court acknowledged skinny that was the wrong treatment plan as this court acknowledged in hindsight the physician made the wrong choice and the patient ended up dying because of it but the physician given the knowledge that he had at the time reasonably although erroneous lee treated the patient and that just simply wasn't grossly negligent i see that i'm heading into my rebuttal time so i'd like  something in the first year of medical school that when you hear hoofbeats you don't think zebras you look for the most common explanation first and in this case and they're also taught the you don't make a diagnosis that don't exist in medicine those those two rules and in this case those two rules were violated not only did the doctors think of something that doesn't exist in this case heart attacks and when we treat a we we take it very seriously and dr jose testified let's be clear you have one hundred percent chance of dying if you don't treat this and if you don't treat it you're going to have a stroke you're going to have an embolism in some place in the body you're going to develop heart failure and you're going to die from that so in that context when they released  modified to criteria is started we dr jose testified and he was the only independent infectious disease are to testify in this case went to harvard trained at harvard trained at mass general hospital and the rec x when she gets to increase they start she was she starts to get better which is exactly what you would expect with being treated with earmarks and they start coming up with stuff that doesn't exist like pregnancy induced vascul evidence that they knew i don't think any of the doctors testified that they knew she had endocarditis i mean the government admitted you know in its uncontested facts or they should have well they should have diagnosis and to change the diagnosis to something that doesn't exist you know pregnancy induced vasculitis and there's a reckless deviation from the center of care or your theory of what this is in this case of not knowing but they had reason to know facts which would lead a reasonable man to realize something very back up there they did they consciously disregard these warning signs it was like driving through the red light i mean you know and the other thing is that they they made conditions of you know we fifteen which was high it encouraged when they released her is one forty the highest the lab test is one forty so we knew that on december twenty third when they sent her back to skin bay it was off the charts and they completely ignore that they ignored new splinter haemorrhages on her fingers and we have pictures in the record but if you take the disk the differential diagnosis of splinter hemorrhage is the only plausible diagnosis  levy said this is crazy i mean the treatment was crazy and it's not easy as someone who does medical malpractise litigation to get a doctor or a professor of medicine at u s c to say come into the courtroom and say these doctors were crazy treat fairly diagnosed shock camera shock that it would meet the definition of rock listeners so i think that the was pretty clear i mean even though that the statute hasn't been applied in the case before the ninth circuit or before the last supreme court the restatement five hundred would apply and the church hall and properly applied the standard and why this is third the guidelines that they tout say that if you have a suspicion a suspicion and then your heart iris you have to follow up within seven to ten days and to repeat echocardiogram and if you go the record as they are three seventeen you look at the follow up they put for it was january seventeenth for a video conference call so they said oh no my december twenty third which was a clear breach of the spirit of care and then my expert said they had they case i think that's clearly distinguishable i was a case where is the government's lawyer points out that person took off from the kodiak airport and went in the water he was rescued fifteen minutes later he was taken by coast guard helicopter the coast guard station he was treated for ninety minutes by a coast guard physician and taken to the hospital he treated them with hypothermia he had no diagnosis he didn't have time and the district court found it wasn't crowded gross negligence of street this case is a case where you have doctors who have a presumed diagnosis and then a car dies they have plenty of time to get this right they make up a diagnosis of doesn't exist they don't owe they have these red flashing the court said that you have to be significantly differential to the law records just records are inherently better position to make such judgments because of their superior vantage point to the evidence  you your honors i have just three quick points first in response to one of the questions that was asked about whether the physicians actually knew that she had i e the district court actually made a finding on page twenty that they did that they believe she did not have  n page one zero eight of the record and m c a translated that two possible i e as you know which is sort of one of the three options for i e and they and they treated her for that as the two criteria instruct which is for possible i  e you treat the patient while conducting the additional diagnostic test to determine if she goes in the definitive category or in the rejected category and they attempted to follow the modified two criteria acknowledged i've knowledge that they did so imperfectly  and they determined that based on that possible i e she should who should be moved into that rejected i e category because her syndrome resolved within four days they believed an third  is counsel mentions in this argument for the first time that the modified that he believes the modify do criteria is the wrong standard of care and that's not something that was ever raised in the briefing and as far as i know it was never raised below the district court reversed and remanded thank you thank you both counsel for your argument this morning versus united states is submitted or less case for argument this morning is greenpeace