sources conduct and instead of providing treatment he had provided over the counter medications and released them back to the jail where he later died and in an est was created in lawsuits counsel before we get to the immunity issue situation where there were multiple claims multiple parties are now down to dr halderman but some of the claims were dismissed with prejudice without prejudice we we have some real fifty four mixed in there if i'm understanding your position now we have we we have a final order across the board because the passage of time has caused the statute of limitations and savings clause to run is that if i got that right so far that's absolutely correct ok so here's my question is it appropriate though for us to base jurisdiction on the contingent future possibility that or is burke to refile the claims that been dismissed without prejudice the defendants would assert the statute of limitations affirmative defen understand time is run but what if they choose not to assert the affirmative defense isn't there still a possibility that we don't have a final judgment here i would disagree with that your honor only to the extent that the tenth circuit  jackson versus state although that language in that consideration is the ultimate critical terminations of the tenth circuit looks to whenever it's looking at a dismissal without prejudice under the circumstances clearly in this case all of the policy matters for because time is running the state of limitations has run that the refiling that the plane is a phantom in other server running the says limitations that risk would be true in almost any dismissal i guess would be true even if the court said this is a final judgment  prejudice for a county matter etc there's nothing particularly new lawyers from entering the case and trying to bring up a new lawsuit it just wouldn't be advisory it wouldn't be smart clearly wouldn't be within the confines of law but that brings us to the questions of immunity your honor brings us w subsection b seven to include dr holdman despite one no contract actually existing between dr holdman and the eastern oklahoma medical center and to express denial of the contract before the chase that precluded any contract between any ass and the eastern oklahoma medical center perhaps a luthier owner and then there was a contract between annie s and dr holdren absolutely and then through those says that it has to be a licensed medical professional under contract with a city county or state unity who provides care to end mids in effect when you look at the plain meaning it's identifying two parties the license medical professional and the county identity it doesn't in the vision and definitely explicitly doesn't state that a third party dinner media area independent contractor can suffice to bridge that gap that's important whenever you look at statutory construction rules laid down by the oklahoma supreme court i guess that's my what part of my question i was dr holdman third third party intermediary it almost seems like the contract between annie s and the medical that particular text and that there's a certain several parts of the contract that you have to look to between e o m c n n e s that speak to that when we look at the sub party on page twenty six of the appendix it specifically says physician and its provider the physicians doctors and that deal and see didn't want to exert any control responsibility for the doctors they contract with in the us to run the emergency room he wants to have it's own staff doctors that he has to run the rest of the hospital but they didn't want to run the emergency room and that's why any has was brought in them in that particular situation so we're on procedural posture here is on a motion to dismiss that correct yes your honor was a twelve b six motion in her by dr holden at the time so  snake getting a little technical but why shouldn't you be bound by your statement in the third amended complaint paragraph twenty one dr holden was employed by the hospital paragraph eighty three d dr holdren can be treating patients at this location without being under contract with the hospital that part of the ruling is clearly in contrast and contradicted by the direct evidence that was before the court in the contracts provided still continue that allegation about he was employed by the hospital or whatever this language was absolutely or honor and judge i disagree with dr holmes characterization of that timeline of events because the two new defendants two new jail doctors had been identified and entered into along that particular course so the judge never made a ruling outside of moving the decision and allowing it to be so and by the way by stipulation holdman allowed the amendment to the complaint because it was done for the purpose to add to no defendants in this case or hurt your position that you didn't know about the problem with the complaint i guess i just don't understand i  amendment and that's frustrating for the court and there's not a justification other than it was forgotten at the moment due to adding new defendants under the terms of the statute of limitations which was the primary concern with the thir for the rule twelve the six option was your amended complaint but also the contracts that the contracts are sort of incorporated into the analysis is that the way the district court looked at it holdman introduces the contract and that doesn't convert this into a summary judgment situation is under way the district court had identified i believe on pages four and five they didn't express that identify that but it can be treated that way for that sure that there's not one out there i suspect there's not that that's just one other thing that could be considered there's been talk of trying to expand the protection of liability to dr hol to doctors especially in smaller communities that have political subdivision hospitals they they said that if the hospitals have a contract or an agreement with a physician who happens to participate who cares for people under the custody of law enforcement that they are or they are i'm you know they're creating immunity which is a benefit to like take counsel that's a policy statute itself especially the one fifty to seventy seven language about under contract where how can there holeman been employed under that provision when there is no contract between him and the eastern oklahoma medical center first of all there is a provision in the contract that if approved by you and see physicians who participate in care  the definition of the employer of the state but every contract that we have the only two contracts we have over and over again say he is not an employee if he is not an employee of your home see that you know this is an independent contractor and if he's an supervising nurses another department non physician personal non allied health professionals p a s and physicians things of that nature  the contract york you're making a counter argument are you saying that the statute can be read narrowly or more broadly that there's an arg that there's an arguable interpretive question here regarding the statute i think given the nature of the statute the only provision of the one that matters far as being an employee of state is under contract the others are undisputed and agree to by everyone  with my question goes to the meaning of under contract does that have a clear meaning in the context of this case or are there or is there more than one reasonable way to apply it to w we have here by way of these contracts i think any way that affects its purpose would be reasonable that i can see over night of the district work i can't think of a reason other than that he had an agreement with the hospital to be there  it doesn't say a written contract it doesn't say he has to perform the service here or there he shows up in the emergency department and he starts taking patients from the hospital with their approval in their dream and he has an agreement he it doesn't say a verbal contract or implied contract a written contract i think in thing that narrows that contract definition to feed the purpose of the statute or potentially fifth person statute which is to assist these tort claim hospitals and having adequately staffed a registry the part well ok but if if the application of that language assuming that it's that it's at least arguable i take  but to the extent to the extent that we have at least an arguable issue doesn't the oklahoma supreme court's decision in solomon's instructed us to resolve as an agency that has no connection to the agency here we have a specific statute that says if you are these three things you are an employee of the state by definition so one of the believe was trying to take  contractual thing and make themselves an agency i think that's a falls under a different section of immunity here we have a specific grant or a specific specific failure to waive immunity dispositions for assisting county entity taking care of inmates that the state and the county in the city have the obligation to provide medical care to they will be extended immunity as long as they're doing so with agreements they don't have to get paid it doesn't matter where specifically they do it but if we have license health care providers who are participating with the agreement of the county and to take care of inmates or others in custody then there is what would it be fair to say that the oklahoma supreme court has never addressed a situation like this in applying the act that is we have any ass as a contractor and we have dr halderman who contracts with any  us as the provider is this on charted territory in terms of oklahoma law i think especially so in terms of you know one city water one fifty t seventy seven absolutely it is i couldn't find any cases discussing that specific statute and i did not see a case on point as far as the contractual relationship narrowing or broadening it either order territory how do you respond to the oklahoma supreme court case and gun which says that immunity must be explicit and will not be inferred unless clear ambiguous or you don't get it would that apply to the entire governmental immunity act why would it why would that interpretation tool apply only to some sections and not others i didn't seem to make sense well i don't think it applied to one where there's a specific exception or a specific delineation of what immunity is in certain circumstances and you have the district court found will i guess there's three of them were uncontested and the other one was  i mean listen to that isn't it often the case that somebody has a heart attack you know hosty in the jail or a cancer that requires a specialty and they send them out to a private doctor in a private hospital hey look this leukemia we don't have the ability to treat it here you treat it private doctor that's clearly pursuant to the request of the jail but nobody would argue that that doctor becomes an employee of the of the hospital i mean of the jail and a hospital he is by definition employ of the state of oklahoma who play the agency of the state just the amorphous state i mean it's obviously you know he's not an employee of the jail is not an employee of the hospital those are the two state agencies that he dealt with but somehow even though he's not in boise either explicit agency of the state he's got an amorphous employment of the of the state what part of the state is employed by that i don't know what specific part i just know th mess where we were the ones who pointed out he's not a traditional employee of the hospital he works there he is employed there doing his job but he is not a w two employee of the hospital something else he works there under contract they didn't the minute after that they didn't amend it until months later well they did they may file one amended petition after that one minute   perhaps that went into the district court's reasoning and was an abuse of discretion after that much time and not much discovery and that many chances of past district court said well you're bound at this point by what you allege explicitly and had a chance to fix it and didn't thank you cancel thank you ok i think we've exhausted the time for both sides thank you counsel for your argument case will be submitted and