second the knowledge in this regard of a substantial risk of harm to please help or seek the maybe maybe forgive me for interrupting maybe you could clarify one thing that i wasn't totally clear on when he finally go for the  biopsy to hospital she refused to do it how do they communicate that and  interrupting perhaps we have the same follow up question just the just the complaint allege that yes your honor where i'm looking for knowledge of the defendant's knowledge that the hospitals have refused with regard to the defendant's knowledge it's our thirty four paragraphs fifty two to fifty three is this in our regional medical center sometimes or you're just speaking a little bit quickly so it's hard to understand you if you say you are thirty four biopsy which you allege was you know he was he was instructed to stay for three hours i think and instead they took him away you know i just want to be sure i haven't gone back to the point that i think this is  like the universal protocol that he should lie down on his side for three to four hours in order to staunch the bleeding and to further allege that this was the liberty and difference with in terms of the honor that is again e r thirty four program i'm looking at paragraph fifty two which i think you just called my attention to and i don't see where it says that the defendant physicians were made aware of the prior doctors  hospitals refusal to confect test well if they refused to conduct it but i my question my not having clear i'm just trying to figure out whether your amended third amended complaint indicates that physicians were made aware of that fact i believe that a reasonable inference can be made that they were made aware of that fact at this pleading stage given the fact that it was the fin pan who ordered the biopsy and he was the one who contacted presumably contact that these two and the pena hospitals and they would have by the fact that they refused to do the heart to do the biopsy that they would have informed at least the from the car pat is it your client's position that the it seems like it is but i just to be clear that the test was this type of biopsy was medically appropriate at the time it was ordered but then after that it became apparent that there might be a lesion that there should have been a change of we should change direction is that right yes you know that is one the biopsy was first ordered in october it seems that it might have been medically except the so  going back to the early i take it paragraph fifty three you say following the refusal of the evaluating physicians to separate medical facilities defendants t h m alan sinclair and us still opted to do a three pass core liver biopsy rather than a fine you know aspirin of the lesion and i take it your argument is we reading the complaint as we must on this state present status was favorably to you that implicit in that sentence is the allegation that they do about the prior to refusal so yes yes your honor ok i just want to knew that mr stubbs was suffering from a serious medical condition given it's subjective nature knowledge can be a bird from circumstantial evidence which is especially important here at the pleading stage the lower court  however repeated examinations and assessments do not absolve prison officials of liability if they grab a min of the prisoners problem is not addressed nor does a prisoner or a plaintiff need to show that he was literally ignored  in order to plead the liberty and difference and so how was the testing that followed his complaints of pain not addressed in the tests that occur again the m r i and the contrast m r i what is it they how does this record demonstrate deliberate indifference well your honor his complaints of pain were not address and and and how that could be showed is because he repeatedly came back complaining that his pain was not only subsiding but he in fact was intensifying and they repeatedly sent him away with the same exact pain they'd get with the same exact pain medication they didn't  even try to change the pain medication in order to see need a different kind of pain medication would resolve his pain moreover it is our position that by june two thousand and nine at the very least that they knew that find a site that they knew plaintiff mr stagg's was suffering from liver disease and that's evident by the fact that his medical records show that he had hepatitis c so rosa's and by to this to january when they conducted the biopsy they essentially delayed his treatment with the knowledge that he was suffering from liver disease this court has repeatedly hope that the way of medical treatment can amount france further with regard to the biopsy it is our position that we have put sufficient facts to show that these the fans knew of the substantial risk of  lesion that was discovered before this biopsy was conducted is highly vascular and essentially one they proceeded to do this biopsy they essentially eradicated any chance of survival that mr sides would have and i ask you one one question that i suspect might not be in the record but if you know i'd be just curious what is the advantage of the three pass biopsy over the what is the other one the find you know the others these two and you're saying that your question have gotten less risky one do you know anything about it is there some great medical advantage to the three past one that which is perhaps why the doctor here with regard to both the financing current al and we have pled personal involvement by the fact that they approved this biopsy in january fourteenth on january fourteenth two thousand and ten third they approved mr stagg's as released without any supervision for has safety or for his complaints from the each you so he was taken to the or at you and they released him  without any supervision just the day after without conducting any tests to see if you was internally bleeding the spite the fact that he repeatedly stated that he had immense pain and his upper abdomen area and there were not enough not enough was being done for him and with that i would like to reserve the rest of my time thank you good morning may please the court i'm kathleen borders with the california attorney general's office i represent the prison medical defendants doctors alan vangie kirk pan and sinclair and physicians assistant bannock i'll be dividing my time with my colleagues who represent the other defendants they'll argue for three minutes each maybe you could just go straight to the biopsy i think all of us would according you would probably agree that that's the most troubling of the allegations because you have these two hospitals who seem to suggest that under no circumstances would they even consider performing this procedure given the condition of the patient and that well it sounds like at the pleading stage i'm not sure what else you could allege as a point of to show that a procedure was medically unacceptable that's the standard that our case is set in this in this context i very interested to hear your response to that particular set of ok well i think that actually this situation is sort of your classic difference of medical opinion even though i do agree that we did end up with you know a very serious and cash offer result and i think when you look at the cases about a difference of medical opinion they show that really what is needed is something more than  summary judgment stage that might be exactly what happens in this case but how do we know at the summary judgment stage that what we wouldn't find is that there is there is uniform agreement that in this particular circumstance want to leave and leave the legion shows up that it is below the standard of medical care to go forward with this type of biopsy i mean we're just at the pleading stage right and at the pleading stage what we have is allegations that two hospitals who there's no allegation that they have ever treated the plaintiff that they ever reviewed his file it's the only allegation is that they refused to perform well via but that's not quite right because the complaint does say this is the specific reason the hospital cited as to why they wouldn't do the procedure and corresponds with the condition that the plaintiff was in right so they must have had some basis for knowing that this particular patient that we're being asked to do this procedure on has some condition that makes this procedure way too risky for us to even want to do it well there is definitely a somewhat of an inference from that from the allegations but i would compare this to a case like hamilton or snowy mcdaniel where what you have is the court saying ok you have the treating physician recommending a course of action in hamilton you also had an outside specialist who had specifically examined the cleanup and they both sad this is the course of treatment we reckon that and then the prison review panel for no medical reason deny that care here but not  to hospital number one and the hospital says you gotta be kidding this is much too dangerous so they go to hospital number two and hospital two says give me a break this is going to kill the poor guy i'm up exaggerating of course but the that's not it and then they just go well that's fine hospital number three why is that not delivered difference because you have the treating physician who recommended doing the procedure then you have two doctors who s show is that you need more than just want to hospital saying one thing and doctors and hospitals saying another why counsel that's why i was trying to press earlier on and i tend to agree with you that the complaint requires some connecting of the dots but we're to construe it of course in a in a generous fashion at this stage and so it seems to me if it were it doesn't seem to me to be sufficiently clear that the these folks who went forward in january made the decision in january really had this  review of this decision well i think and i know that it was identified in questioning about plaintiff's counsel there is actually not the al any allegations the doctors allen or seeing claire knew about the alleged lesion in the december m r i i think it's really big in the complaint and it doesn't actually say it says following the rift usal of the evaluating physicians of two separate medical facilities defendants still opted to do the biopsy it does not say that they had knowledge of it but that's what we just reviewed and so now i've said i've looked at these paragraphs quite carefully and so so i'm now what i'm telling you in my hypotheticals i'm i'm connecting those dots right as a as opposing counsel has suggested that we must do and then my question becomes how do we really know that there was this revisiting of the decision there seems to be that really seems to go to the nub of it well i don't think that the case is really say that there needs to be this kind of level of re evaluation in order to meet a deliberate indifference standard i mean we're talking about that's the whole theory of the case that the original decision to order this type of biopsy was ok then that becomes contra indicated and for our hypothetical we're assuming that it isn't just a difference of medical opinion but that at the summary judgment stage what if they could provide evidence that nobody thinks that would have been the right kind of test then what well i think if they have that evidence they need to put it in the complaint i mean that's why you have pleading requirements that's why the contra indicated ok the the amended thirty minute complaint strips surely says that it certainly makes that's that allegation it doesn't state necessarily that have done a survey of all the medical doctors and none of them would agree with this result that she has to put that in a complaint is a pretty detailed complaint i think if they had that evidence they would need to put it in well considering that it has and but but but why why does the this procedure and as a mother doctors say you see it coming back to that in framing it as a difference of opinion it just seems to me that you're scared i just don't have you every opportunity because this is clearly very pivotal to the case and i don't think you've answered the question i'm sorry the hypothetical i what if there isn't a difference of medical pinioned what if it turns out that there really is the situation that given this particular patient's history if that lesion shows up then the standard of care is don't do this type of biopsy that deliberate indifference that's opposing counsel's argument so i guess part of my my issue is that i think there were doctors who said that this procedure was ok and there was a hospital that said this procedure was ok so there is a how how do we know there was a reconsideration of the original order for this type of test do we have that in the record i mean vibing to show it to me i mean i think it's too big right now to sort of say you know lesion then they give him a second m r i which showed no lesion or no tumor then he had a third m r i which showed some lesions and some damage to the liver so the decision is to further investigate do a biopsy to figure it out and i just don't see anything in the case law that would say that that is deliberate indifference and i do see your point i understand your point about having the reconsideration but i don't think that the case laws require that for deliberate indifference they don't require this sort of specific detailed medical reevaluation that is going to medical malpractise maybe it's a medical malpractise maybe it's negligence oh well we should have rethought about the biopsy before going a had if there is this lesion being shown but again i think that the way that this was recommended there was already evidence of a possible lesion when the biopsy was first recommended because that's what it was supposed to be figuring out is what's going on with his liver what caroline you're always  because at that point there wasn't evidence of a lesion have got that wrong i'm talking about the no i know you're right that at that point what the course of care that had shown was a significant course of care significant steps in order to attempt to and of course the other team wants us to find that this was you know deliberate indifference and i think the state's response was you know as if that time there was an indication of a lesion but a minute ago you just said there no i'm sorry i was not saying that there was no indication of  when it was denied what i was saying was the evidence of his medical care was that he was receiving significant medical care and attempts to diagnose it and while one m r i showed a possible lesion the other m r i showed no tumor and then they were going to go disturbing allegation that and here they do i'm looking at paragraph fifty six and fifty seven of fifty eight of the complaint the universal protocol for this procedure requires the patient to supine position it's to staunch the bleeding for a period of three to four hours immediately following the procedure so they're there they are saying this is universal then the defendants who we don't know who they are they weren't served there's certainly no allegations that any of that is tied to any of the named defendants and so they can't state a claim against the specific prison doctors that are named in the complaint for that s the the what they do have the alternative allegation that the nurse should not have released given the doctor's orders they do i believe that is the hospital nurse who was not affiliated with the prison and again no allegations that it would be a space which is an essential element for a deliberate indifference claim under one thousand nine hundred three however based on the discussion so far i can address one issue regarding the biopsy and in particular causation at the time of the biopsy than a fifty percent chance of survival due to his advanced liver cancer specifically alleges that he had a twenty seven percent chance of survival and the my understanding of the argument in this case is that the defendants denied him treatment of his liver condition which turned out to be cancer and one of the essential ways to develop a treatment plan once the lesions discovered at the end of december would be to do a biopsy the biopsies essential to determine how the doctor should treat it because i need to know what kind of cancer it is how advanced it is and what the treatment options are so my argument as to the causation element is that it's not deliberate in difference to do the biopsy because there was no other alternatives to stage the cancer and develop a treatment plan for this patient and the facts put in the complaint show that the decision would not have survived behalf of the lead doctors hospital of manti i had originally intended with my time to discuss the issue of the state law claims as those are the only claims that are pending against my client i mean appellate only basis if they assert that the state file claims were inappropriately dismissed were result of the federal claims being dismissed there is no allegation that an actual analysis under thirteen sixty seven would have been otherwise an abuse of discretion however in trying to if we if we conclude that the federal addressed and raised in those motions but were not heard and deemed moot at the time of the federal claims being dismissed but just to briefly touch on the point with regards to the nurse under california law a nurse cannot just charge a patient physician has to do  that and regardless that doesn't come under the deliberate indifference analysis under one thousand nine hundred three as those are specifically a negligence cause of action and i see them running out of time unless the court has a specific question for my client thank you thank you honors ahead sorry about that i know it's all disheartening to watch a take away but it's ok ok so pony opposing counsel said that this up us as a medical negligence claim however a finding of medical negligence does not preclude a finding of deliberate indifference and back to certain instances of medical malpractise may state a claim for deliberate indifference if the requisite culpable recklessness is shown and in this case especially with the biopsy where the risk factors with regard to the lesion was discovered before this biopsy was conducted that states a claim that this culpability of these  state of mind was reckless enough to state a claim for deliberate indifference moreover some differences of medical opinion can amount to deliberate indifference especially when the medical opinion chosen was  medically unacceptable under the circumstances and the friends chose this course and conscious disregard of an excessive risk the plaintiff's help in this case this is exactly what we have the medical opinion to proceed with this biopsy given that three to four actually risk factors namely that he had a cirrhotic liver that he had lesions that he had a sadie's fluid and that this particular liver biopsy which causes more bleeding than any other alternative out there with those four risk factors this proceeding with this biopsy was a medically unacceptable