fixed given the period of time that has passed in this litigation he now has another question and that is if it can't be fixed now could it have been fixed previously and is its permanen consequence of the delay in its treatment there is no question in this case but that mr philips satisfies the legal requirements for establishing a serious medical need this is a painful debilitating condition although the defendants have cited some contra and evidence that is at least an issue for a jury and that is not determin likewise the defendants and specifically doctors tangle laying jefferson and lewis have all acknowledge that if mr phillips condition did not improve after an i that was conducted in the summer of ninety two thousand and fifteen he would be entitled and would need to be as a matter of common sense reassessed to determine whether or not his condition could be surgically alleviated distress you you mentioned up dr jefferson then there's a state actor question in this case whether dr jefferson is a state actor and i'm curious i guess your position is if there is a constitutional duty to provide care which there is under the th and then that means any party that provides care is automatically a state actor or is that narrower than that the concern i have with your position that seems reasonable to me but there's also a constitutional duty to provide food there's a constitutional duty to provide shelter what your position mean or in this case it is in terms of the provision of medical care it is narrow within that i'm not suggesting that if an inmate suffers an emergent medical condition and has to be run to an emergency room and he is seen by the doctor on rotation that that doctor automatically becomes a state actor why is jefferson different than the i guess that's what's the task you would have us employees so that it is narrower than the request from the doctor specifically dr trying to lag at kentucky state penitentiary to determine dr jefferson was to determine whether what what diagnostic studies were necessary what treatment was necessary can i skip to the chase on him and just ask so it seems to me not much different than an emergency room when you say that in fact an emergency room seems to do more but what i understood jefferson to do tell me if i'm wrong i may have the facts wrong is drain what i'll just call the end and then say if it doesn't improve surgery would be necessary in my stating that incorrectly was it someone else or was it jefferson it was it was jefferson you're correct your honor but but dr jefferson wasn't a doctor on rotation he was a specialist on who the kentucky state penitentiary who the dr trying to like had specifically sent mr phillips out to sea so go back to the state actor question but i don't get the distinction between him and the hospital t prison sends someone out to see an outside as outside person whether it's an emergency a specialist so use this hypothetical if they sent someone for a particular surgery so let's say instead he stands him to to do the surgery he wants would he be a state actor i believe so you know but what if he breaks a lag and goes to a hospital and they put him in a cast you're still sending him for a specific task but you're not  fix i agree that that's i agree but that's it distinction between i base this case where there is not a personal referral but why does that matter to what the constitution means by a state actor so it's a factual distinction why is it legally significant i don't i get the theory that if it's a non delegate all public function anybody performing the function becomes a state actor i get that theory but i don't understand why if it's up personal referral versus a just a referral to a hospital in the person who gets it it still seems to be a public function will your honor it the way i read the cases and  and i may be wrong when somebody goes to the e r the doctor they see or the medical professional they see is a matter of chance when i read the cases it is look if you were going to send a inmate to a physician specialist outside in particular by name not let's send it to an orthopedist and he gets dr jefferson you're sending him to dr jefferson specifically and then you're asking dr jefferson to tell you how this individual should be treated i think that makes him a state actor this is not an issue of chance and the kid and the state system is reliant upon him to control as they say i would agree if he sent him to a particular practice to get that opinion and be a state actor you would argue that right it's not just a particular person you're drawing a broader circle than that it seems to me no your honor i'm not i i would have practice fall within and i'm sorry to interrupt you but would a practice fall within it i don't know judge that's a i would say that's a much more difficult argument to make because i think the issue of  yes or it's west of the atkins call versus muskegon county and in particular that i think that carl versus muskegon county paragraph that the that this court included is critical it says finding no state action in a case like this would incentivize the state to contract out piece by piece features of its prison health care system and therefore avoid accountability i mean this is not a chance encounter between an inmate with an emergent condition and a position or a health care worker that happens to be on rotation in the yard that night but then actors still be subject to malpractise suits and wouldn't prison still potentially be subject to an  th amendment suit in other words you're not saying that if you refer someone and they provided inadequate care ear not conceding i assume that the prisons not liable oh no sir  so then why wouldn't the inmate have multiple remedies want to guess the prison and another against the doctors for medical malpractise like the rest of us would have oh i think i think he does i think he's got a stake claim against dr jefferson for medical malpracti so explain to me he might be explaining to me the logic of our own case because i know it says that but why how could the prison avoid liability by simply referring someone to al i mean i don't know that that can be right well i'm just your honor i'm just referencing the court's rationale and called vs muskegon county and i think i think it was well deserved because nine hundred and eighty three exists for a reason and to take a doctor under the little bit from the state actors of that th amendment theory overall i'm curious to get your reaction i guess i'm concerned it seems like the standard of care for this type of injury is not surgery at least that's what their experts the defendant's expert says how are we supposed to assess whether there's even been malpractise or even a higher standard whether there's been deliberate indifference without some type of counter evidence to counter expert evidence i know our case file seems to be somewhat confused when you need expert testimony to prove your claim and it's there does seem to be extinction between obvious injuries and maybe latent injuries or delayed care but this strikes me as there was some treatment provided in this case and your client might just be disputing that there should have been more truth so why why is turning whether there should have been more treatment why isn't it inappropriate in this case to say we should have provided d expert testimony showing what they said was that well your honor the the perplexing thing about this case is that dr jefferson testified in his deposition way back in march of two thousand and eighteen he was the st the physician i took you know i took his deposition because i anticipated that he was going to tell me what he did and that is there was a away fine if it doesn't he will need to be reassessed that is what mr phillips has been fighting for we are trying we have been trying since that time the mass obviously didn't go away it was it was it was palpa dr lewis in september two thousand and nineteen he felt that mr phillips has said it continues to be painful and debilitating we we have been and this is one of the reasons i've asked the court as part of my prayer that he be that the defense be ordered to send him out for the m r i the doctor jefferson said he would need if the mass didn't didn't decrease to determine whether it could be fixed and which is owned and which had it sent back i get what you're saying about jefferson i'm still kind of wondering why jefferson's in this lawsuit it seems i don't know what he did wrong versus what you're complaining i understand what you're saying the prison doctors did wrong but why is it it seems to me what you're saying is he got care he got it drained he got a recommendation he just didn't get adequate care explain to me why that isn't it that that's not it your honor because you didn't get care it appeared court's own authority say you can't you can't provide an effective treatment a serious make medical need requires effective tribes i agree with that point but that in order to determine i thought in the adequacy of care cases suggested that surgery is appropriate and they suggest that it may potentially be appropriate but it wasn't certainly the standard of care and i don't see it i'm not entirely sure what your client is or is your client requesting surgery or what what is your client question mike on a very simply your honor my client wants to know if his condition can be fixed and if it and frankly judge we could have fit we could have found this out back in in march of two thousand and eighteen when when dr jefferson testified that he was entitled to a reassessment because his mass hadn't gone away and i asked the defendants to send him out they wouldn't i asked judge judge russell the ord when dr jefferson got the letter from mr philips that said i'm relying on you to help me and i was told by dr tangle lang that i needed no future care or treatment whatsoever ever the doctor jefferson was required to respond to that somehow pick up the phone write a letter to dr timeline and said you've got this wrong what you told this man was  lang admitted it was probably the impression she gave mr phillips was inaccurate i see my time has expired there's no for the question for the panel at this time i'll allow in there any further questions o k thank you mr belcher you'll have your full time for rebuttal because you were answering questions when it went over thank you sir ok which counsel is going st and to me or are we i'm sure go ahead all individuals to grievance be named those emissions are particularly instructive because he submitted and fully exhausted that grievance before the events that form the basis of his th amendment claims tha conduct or the denial of his desired surgical treatment caused his claimed harm or that the desired surgical treatment is medically necessary to alleviate it legally set up a best case the best counter i guess to your to the district counselor our follow up meeting after jefferson that we will provide nothing else and so if we have to take that statement as a st as a stat at this stage to that show deliberate indifference given that dr jefferson's opinion was you know reassess and see if it goes away first i don't necessarily agree that there's a fair import of the testimony that's been cited by alan but for purposes of this question fifteen not to provide the surgery that he demanded was one that did not preclude him from again seeking primary care services if he felt like an ongoing complaint or persistent complaint in fact he availed himself of the health care process on other occasions in fact in speaking with dr our own he even discussed that in mr sharon's yes you can see i mean go back to judge murphy's question which is if dr tangling said basically we're not going to provide any more care for that would you conceive that if you're in the light most favorable to the plaintiff that would be sufficient in isolation you are it's hard to say because he even dr jefferson testified that a reassessment might yet reveal there would be nothing to be done and the only  mean he's entitled or not idle but he need he may need surgery my recollection of dr jefferson's testimony was that if it did improve a reassessment which may there's nothing to be done or it might yield surgery but there was certainly no certainty as to what treatment options if any would be available if they are to improve which is entirely consistent with the fact that mr phillips has asserted a permanent pain and disability associated with this injury and he's claimed throughout this litigation that the onset was in two thousand and fourteen because medical records years before this lawsuit was initiated in which he associated the onset of that problem to another event to the extent that causation is that an element here phillips is failure to present verified medical evidence or any expert or to identify disclose expert who can a pine about the standard of care or that any act or a mission of the defendants i believe or of the failure to provide the desired surgery actually caused the pain that he's complaining is there is there any what act just practically speaking about the case i mean  t mr phelps i think there's no dispute that you had this large lump in the side of his leg and it seems to not have gone away for many years is there any kind of like it seems like that could be described as an objectively serious medical need that any any person would think if i have this large softball sized lump in the side of sides of the side of my leg that i i would need to get treatment for that or i would need to seek a doctor's opinion and try to help fix pain why can't we just use that as a basis for saying that it creates a jury question where is he received treatment there's no question about it then there was a whole host of issues and treatment that was provided to him and i talked to him why i mean this maybe this is different in kind but why mr bell's leaf point which he brings up in  do that i don't i don't understand why that wouldn't occur i can't speak to the strength of the decisions that were made from a litigation standpoint prior to my entry appearance but i will say in terms of that requ the way to avail themselves that nothing i understand and sympathize with them but i why not just from a practical perspective i'm just curious like what if if he says hate just refer him back to jefferson let him make that assessment he said he would need i don't understand why that just wouldn't happen i get it might not be constitutionally mandated a court might not need to get involved i just don't understand why when the president well complaint that he's complained about is pain and the documented medical records that have been provided establish that it didn't affect his movement it didn't appear to affect him from a physical standpoint in terms of his ability to engage in physical therapy in fact he said he improved during physical therapy but then demanded surgery and and in good physical therapy i have a right i'm sorry  said that he had aids surgery no sir ok you are is and the constitutional question regarding deliberate indifference can be avoided under the doctrine of constitutional lawyers because quite simply mr philips failed to properly exhaust available mistreated remedies to grab him and his complaints here is that he did not receive the surgery to which he thinks he's entitled and which no doctor and said he is mandated to alleviate is pain but he exhausted the grievance upon which he realized the month before that decision was communicated to him yours for all these reasons and those in addition to those contained in our brief we would ask the court to affirm this to court grant of s judgment for thank you a not improving you recommended surgery i'm reaching out like if i call my doctor they call back well and this is a circumstance to where dr jefferson had referred had had gotten a referral had evaluated mr phillips and then had sent him back to the to the initial treating physician so he's he's now under the care again of his primary doctors and in those circumstances no he's not he's not obligated to go back and cited and in fact i cited a case that was out of outside of kentucky but one where in similar circumstances a patient was referred out and and contacted the physician i believe is in ohio and they the court found no duty to to  to follow up and there are two kentucky cases upon which the plaintiff relies in asserting that there's a duty to follow and those both both of those cases involve expert testimony from the plaintiffs and the court despite that standard of care testimony so there's no support in the case law for the contention that such a such a duty can be imposed in the absence of expert testimony establishing it and so because there is no expert testimony here  the severity of the compliance and whether that is something that an ordinary person would be familiar with that x complaint requires wide treatment i think if as i did say hey doc i need surgery my leg healing and the doctor can ignore that they can say no you don't need surgery but can they really just ignore my complaint that can i mean i don't know why i need expert testimony for that well i suppose if the complaint is that i went to see great trading partner i think he could take on either all i think if if he believed that surgery was appropriate he would have he would have treated that that presuming that the prison consider accepted that recommendation but yes he would have provided treatment in that case his st duty was to was to evaluate the problem and determine what the appropriate course of action was and in this case he determined that surgery was not required so he didn't provide a form of treatment so position who is treating you the doctor can't abandon you this is a matter of common sense and i've cited to the court the state cases that say i don't need expert testimony for the reasons your honour's have already pointed out d as an example of how strange this argument has become doctor jefferson's expert was reduced in his deposition to arguing the doctor jefferson in fact had to mr phillips by putting his mr phillips letter in his file so no there is a clear duty it's a commonsensical duty and you just can't simply abandon your testified it looks like his mass is decreasing if it doesn't to continue to decrease he needs to be assessed again for surgical intervention he says that what that's what he told dr trying to lack then he was informed by d philips by mr phillips the doctor telling alang has instead said you're getting no future treatment whatsoever even though by that time it was clear that his masthead decreased in size all he had to do year on it was pick up the phone that's all he had to do and i think that that is not an unreasonable requirement and it was the least he could be expected to do given the physician patient relationship i said that they could evaluate him for further further surgical intervention the defendants refused and doctor and judge russell would order them to do so that so that's where the discovery stopped and effectively you know judge the car you put your finger on it i don't understand why this wasn't addressed years ago and instead we have a situation here where a man continues to have a serious medical need it may now because of the delay have become permanent there is a least a jury issue here on critical facts that require that the judgment below be reversed and the case be remanded for trial beginning but your arguments were actual and and we really appreciate your time and effort in this case and the thoughtful briefs and we'll take the case under advisement thank you for policing yourself with the time limits i know we ran you over a few times but i appreciate all the attorneys being diligent thank you