his brief to say that for a person to have medical waste and medical tools sutured into their gums is not seriously objective so the issue before this court at one of the novo review is to determine whether or not the circumstantial evidence that mr echols could put forward in trial is provides enough context to determine whether dr apple's treatment decisions were proper well it's certainly enough for malpracti yes just count but this goes beyond malpractise to gross recklessness specifically mr echols pled in his complaint nd amid a complaint scuse me that he heard particular noises during the treatment he pled that he heard dr craig and others make particular statements regarding the dental tools that were being used shortly thereafter after two weeks after he felt pain after raising his mouth he found a dental bit in his mouth these are facts that could be established because he provided this bit according to the record as using it brings his complaint to the correctional officers there's no dispute at that point there's no dispute that this occurred to dispute  pleadings i'm not sure that the complaint is not sufficient as it is but if it were to be amended again what would you want to add to it your honor i think if the complaint works to be amended well what i don't know if the complaint needs to be amended that's your position or not will will will be talking about that but i am but you spent a fair amount of effort saying we it was premature to him to dismiss without leave to amend so that's why i'm asking if you had leave to amend what would you change if mr arkell's were given leave to amend specifically what he experienced during the dental procedure what he experienced after the dental procedure the specific statements he made to the correctional officers the specific statements he made to the dental and medical staff to state a correctional center those were all go to supporting the issues that were raised by the court in pettis to say what was the context behind the dr craig made in the context of the context of the decision is based on dr craig allegedly not paying attention to the statements that mr eccles was making not addressing the pain the mr to address an issue that the apple e raised in their brief the issues in the claims that mr eccles raise are not speculative they're not made up they're actually consistent with the prior versions of the complaint they just provide more detail than was previously finally mr eccles if this court so chooses this this case should be remanded to the district court for further proceedings to allow discovery to proceed this is not the type of case we should be dismissed  fifteen a because it's not fanciful and it should be allowed for further further education  thank you your honour's may please the court counsel my name is james abbott i represent dr frederick kreg the st issue that the court needs to look at which is really ultimately is why th discretion just dismiss deficient complaint in reviewing the district court's opinion it cites to denton versus hernandez with respect to the reasoning behind dismissing the nd medical and it's very clear from that order that it was dismissed because the new allegations the allegations that were not in the st amena complaint or the original complaint were deemed fanciful and frivolous and under section  i'm not saying the x rays fans the order is saying that the new allegations that and i can tell you specific what the district court relied on in determining that these new allegations were for a list are number d one  when the original complaint and the st medical plate were filed by the way the st many complaint was filed by counsel there were absolutely none of these allegations pertaining to overhearing the example counsel we we were view credibility decisions by immigration judges in a lot of cases and a lot of times immigration judges will say that somebody applying for asylum was not credible because they have added additional details to the story later on ok sometimes there's a good reason for that sometimes there's not but that is a kind of quintessential credibility decision i can't imagine how somebody could make that  real medal left in his head by the by the prison surgeon the world surgeon but if i understand your honor correctly i mean i can't get inside the head of judge merrick who determined and clearly asked a very valid question earlier about the level of sedation and it's not in the records specifically but common sense does apply here given that this was a wisdom tooth extraction we know that there was a certain level of  and he is now saying for the st time not when he had an attorney and filed his st many complaints that even though he's sedated he overhears these to god or something about i must say i don't understand that i've had all my wisdom teeth out a general anaesthetic center to drugs are low level general anesthetics and sometimes they produce total unconsciousness sure but by and large dentist proceed under local dentistry perceived under local anesthesia i would agree with you i'm not disputing that there was as as you know want to rehash it but there was some level of sedation we don't know how much the point here is that so how could the judge decide that it would be incredible for the plaintiff to have been aware of some of the comments made during the procedure given how much we don't know about that again i can only go by what he specifically wrote in his opinion and he lays out his reasonings for believing this was fanciful and or frivolous in his opinion but i do want to move on to another point because i think this is a court that might this is now my only position even if this is being reviewed on a to no vote standard the petits decision does not apply here and there's a very good reason for that teddy's decision as pointing out in the dissent and in the majority opinion but dresses situations where poor medical judgment or poor medical or professional judgment is being used i've been doing medical negligence case for a long time and i can tell you that they centrally boil down to two types of cases you either have poor medical judgment such as whether or not to take somebody to surgery in the st place are they good candidate for surgery or perhaps you should have taken her conducts an operation and leaves a sponge in the patient which causes an infection later career doesn't by accident that's malpractise correct nd possibility is he leaves the sponge in the patient knowing that he's left the sponge in the that dr craig showed up his patient knowing that something you know a medical instrument had been left inside actual question and i'm going to answer that based on the constraints of pennies and that was a decision that was that just recently came down i didn't ask about anything about pepys i'm asking about this case why is it improper to refer to i think you know given the nature of the complaint and our standard review we have allegations right the supreme court tells us that the standard on review of allegations is whether there plausible well there are two options we know there was part of a drill bit inside that's what the x ray shows sure and don't even know that that's based on the allegations of life you know if you add in virtually every case involving these types of insist this is a complaint we take the allegations of the complaint as true and the allegations of the complaint as true at best rise to the level of a race it's a loquitur medical negligence not deliberate indifference how do we tell the difference but why why is the inference of knowledge implausible here because the practicality of showing it is impossible when you're utilising circumstance you're telling me it's impossible to show recklessness by circumstantial evidence based on these allegations yet that's what farmer against brennan said you generally but you seem to be approaching this as if deliberate indifference were somehow something that had to be pleaded with specificity as if it were up like fraud but they're also states of mind maybe pleaded generally all you got to do with putting your complaint at the state of mind is recklessness and then we move to the next stage of the case i mean that's just black letter i understand where you're coming from  again i think there's actually no precedent for this type of matter being a deliberate indifference case i hope we don't have many cases where ghettos leave drillbit inside the mouths of their patients we actually have a number of cases like that but again frivolous that's an abuse of discretion standard reasonable minds may disagree but ultimately under an abuse of discretion standard which is the proper standard rather than  pieces of a drill bit as well as medical waste was later found as a result of it as an x ray the recklessness here is that based on the allegations dr craig knew that the drill bit broke dr craig failed to locate the drill bit of the medical waste knew he didn't look for it and as a result he ultimately sutured mr eccles golems without ever notifying anyone this goes beyond a tort this is not constitutional izing tort law  appreciate your willingness to accept the portman in this case of the willingness of your law firm as well and we appreciate the help to the court as well as to your client thank you judge the case will be taken under advi