delivered a deliberate indifference towards the serious medical needs of mr tucker in violation of the eighth amendment they did so by failing to provide doctors that were meaningfully in reach having nurses do tests beyond their training failing to properly review patient records having a business corporation holding themselves out as a medical care provider and having non doctors promulgated and enforced policies and procedures having to do with with the own policies and procedures having to do with the protocol for chest pain an individual should have been sent out for medical care or nurse busty ear should have called the on call physician d for the nurse in his failure to call him to come and render assistance under your analysis of the dr hoffman is liable not for the failure of the nurse bust year but for his failure to make sure that the policies and procedures as written and you have a history of cardiac history he reported a heart attack and singling and you have the presence of suspicious cardiac symptomology well sounds to me like the protocol is appropriate then the protocol is there's not a couldn't take care of himself he's incarcerated he had the duty as the medical director to see that these policies and procedures and probably gaited were properly enforced such that a constitutional deprivation did not occur not only did he not do that discriminatory invidious discriminatory type conduct in that in his deposition dr hofman states that people lie about their health and it's our job to decipher our way mention the prior cardiac history and ambiguous terms is it your position that generally accepted medical reaction to that would have been in the face of those three items automatically to seek immediate qualified medical help or give an e k g do something more than a doctor a wait and see policy and if or is that you're relying on their protocol and it's their protocol that gives you the basis for saying that she ignored or egregiously ignored the affirmative steps that she should have taken such as calling the oncall doctor which are you or are you relying on both actually just as we were relying on both number one i believe that's the basic medicine one a one man is presenting himself certainly if you were in a an emergency room setting and you went into the hospital ality here and a bit that that judgment resulted in a very tragic event there's no doubt about that you're saying that is the elevated from metalled medical malpractise negligence  deliberate indifference because she ignored but she didn't ignore she missed misjudged that's why i'm asking words where's the evidence that any record any medical person medically trained person that she's supposed to be would have the experts have testified that she taken that next step she would have probably been off the hook but unfortunately she exceeded her straining and abilities and in essence made a diagnosis which ultimately led to the the fatal travesty that we have before the court  medically treated absolutely not it would result in death just like it did here thank you if we have finally like that was there two minutes for rebutt a determination such as what the court and asked to take are the written policies procedures appropriate written policies and procedures were appropriate and signed by dr hoffman the constitutional violation because with  determination from a prior cardiac episode from another individual was never discussed with this particular nurse nor was the tucker incident itself ever discussed before or after with with this particular nurse why is liable based upon the fact that there was no action taken and what we had here essentially was the correctional officers pipe passing the decision of this nurse or the indecision of this verse to finally   you lost me on the transition through the ratification is that they did not do any type of follow up in terms of not only the treatment and this particular individual mr tucker but there had been a prior cardiac episode and there's bastard testified that she had no knowledge about it or any no one had ever talked to her about those types of protocol so there's a ratification on the part of dr hofman who's the one he says makes all the decisions on the medical director as medical director on medical decisions and there certainly wasn't any follow up on the tucker matter either she was never brought forward to to go over any of the issues concerning with  inference failure to provide medical care deliberate indifference is also not in your delay of surgery without more and deliberate indifference is not a medical it's not a difference of medical opinion regarding individual treatment so liberating difference is also so what's what we do with the declaration you're asking us to ignore it's in the calculus now we're serving judgement states we have to to obviously construe the facts and most favorable to the point of you're arguing the facts in context of what else has been presented and what else has not has not been presented similarly drugs we have to take from the perspective of the plaintiffs in this case and if we look at that clark suspected heart attack and taken appropriate action and she didn't just sort of reduces it to a fairly simple proposition so what's the rest of the context well first of all he then statement i got to quote that  indifferent obviously that's a legal inclusion that he's not qualified we're not asking that you're sort of look at the rest of the record or whatever it is that's sure we know we don't take legal conclusions so what's the what refutes that so conclusively that it shouldn't be examination but why does that change anything in terms of it sounds like good cross examination but why does that change anything in terms of this conclusion i mean i realize that that one can create a genuine issue material fact by opinion but on the other hand was i guess what i'm saying is you're quibbling with his he didn't have enough information to say that that doesn't make any difference in summary judgment that's cross examination material at trial so i guess we're trying to focus around on and since the declaration of why you think that is a matter of law it's so insufficient and so that it doesn't create a tribal issue of fact well one thing with regard to the declaration of dr clark is the fact that you know hindsight looking at the autopsy report we know that he chronic diseases presenting chest pains tamely unless he describes it as classic heart attack symptoms in your expert says no i agree to a different conclusion doesn't that create a genuine issue of material fact i don't i classic heart attack asymptomatic she took the bilateral pulses you took by letter blood pressures he took the respiration if you did a full examination of him and made the assessment that he did not have it was not having a heart attack and related b his e decoration and deposition testimony seems to put before us is the idea that anybody with a modicum of medical training would have instantly recognized that among the universe of possibilities one of them was a heart attack and that the response to that the appropriate response both per your own protocols and per the generally accepted medical anxious he says that he may have had its heart artsy but i think i had a heart attack a few months ago with all that into consideration see maybe assessment that it was it was not related to the didn't even qualify as the classic symptoms and told me again what she did i'm trying to get you to answer the under the eighth amendment standard why what she did isn't objectively and subjectively unreasonable enough at least on this record to go to the jury as to whether she in a legal sense was deliberately and different because in the face of this classic symptom she failed to do what she ought to have done and in the face of overwhelming  i'm overstating that i suspect that overwhelming evidence that this man very well might be having a heart attack what refutes that overstatement arguable overstatement on my part what refutes that on the record but i just the fact that the fact that based upon all of his other complains she took into the facts his medical history and attributed that to  the next day he underwent an e k g and if it was found that he later had a heart attack that prior evening in that same regard it was at most a medical misdiagnosis not deliberate indifference well let me ask you a practical question based on that i mean seems to me leaving aside medical data member climb they certainly have enough to get to a jury on the negligence claims of medical malpractise claims now if  win here it goes back to state court they're going to go to trial on this as a matter of judicial economy why not let them have the trial in federal courts and and our only sings out it's a close question i think on maybe a close jean last year made a discretionary decision when she treated mr packer and made her assessment of mr tucker's condition so in order so to do it any other way would be in fact holding  setting and if not and that is the cooperation if didn't deed cooperation has to be there these are the classic signs that that are taught anywhere in fact i would go back again the classic sign was acknowledged finally by the correction officer who bypasses nursed past two years in action and finally takes the bull by the horns and takes the calls the empty you get the necessary medical attention that should have been made days if not longer the there is a correct way of creating a post sale restriction without uprooting the important and fundamental concept of privity that way is actually set out in a case that is cited in our brief for federal circuit case