because there are genuine issues as to material facts regarding both the objective and subjective components of santiago's eighth amendment claim now although i will address the objective component i think that the in giving your client the recommended treatment yes your honor this case truly starts when they sent me to a dermatologist a medical expert asking for a diagnosis and treatment plan and when they got it they disregarded that recommendation knowing that mr santiago was will chair bound that he was experiencing debilitating pain and swelling and was unable to walk for nearly a month now the dominant ologist recommended three treatments one was a topical steroids another was compression holes and the third was potassium iodide which is referred to in the record as s s k i which was per recommended to reduce the size of the nodules in the swelling up under his skin now there is no question that the recommended treatment was delayed if i can just ask you a question just a little bit before time and with respect to that i mean it does seem like they were being pretty conscientious at least up until the point of implementing the recommendations i mean you know he got a lot of attention they'd sent him to o s u medical center and there's not much smaller than difference in the air at least up until the point you're discussing now is that fair well yes as we as i stated in the brief we don't dispute his medical care prior to february twentieth when he was actually sent to the dermatologist for the recommend it to get the recommendation for proper treatment but don't we have to consider the fact that even that he had had this other treatment up to that date and hoped we thought february twenty to march seventeen in that time frame and it wasn't is if there was no treatment during that time frame isn't that correct can you  a time frame yeah february twenty two march seventeenth time frame which is really the time it issue correct right ok so so during that time frying the complaint is that they were in different deliberately and different  delay in all three treatments because and i want to point to something specific the treatments were recommended on february twentieth and mr santiago states that he spoke with dr ringle who's the medical director that day and was told that those recommended treatments would be prescribe now what we see is a seven day delay between that recommendation and when dr most sure signed off on the recommendation the the mattering going on vacation well i think that that is something that's unclear as well actually when he went on vacation because the apologies are you that there's no way that mr santiago could have talked to him  on the twentieth because he was on vacation but obviously mr santiago has pleaded and also has asserted and his grievances that he did talk to him about that recommended treatment now yes they argued that he was on vacation during that time we know from the grievance responses that when doctoring goal is out of the facility then dr mosher is to take over in her position at that time as assistant medical director where we've been just going fishing well the point is that's and that's one of the issues that were disputing why did it take seven days to even sign off on the treatment when treatment was readily available there is an argument this was a non formulary right to be ordered while i was on the not readily available what i was going to sort of separate that because that is a separate issue on its own but as far as the topical steroids which is different than benadryl and the compression holes that were recommended there was no sense of urgency and prescribe ing those recommended treatment although there was signed until i think february twenty five or thereabouts and then she went ahead and signed for the prescriptions on february twenty seventh so there's just a two day delay if i'm correct in terms of her dr mosher learning that these orders had not been signed and her signing them and my correct about that well i'm not sure that the record reflects that she knew about it on february twenty fifth but record anything in the record reflects that she knew before that these recommendations made by the o s u dermatologist on the twentieth which apparently went on signed were in fact on side because the nurses things like what happened here is as  jago began asking questions twenty second twenty third twenty fourth and twenty fifth you know what's happened to these three orders the moment the compression hose and the  states and her second affidavit as that i did not sign off on these prescriptions because i was waiting to see one and if the benadryl was going to be affective and two she said that the compression holes would be more what caused more and more discomfort than he was suffering at that point in time so i feel like that's direct evidence that she knew during that time and she had considered and not signed off on that prescribed treatment however even her assertions in th are not supported by the medical record she says that she was considering whether the benadryl will work and they also asar in their motion of on consideration reconsideration that he was receiving all i see in the medical documentation is a been in general prescription from october of two thousand and seven there was a ninety day supply which means that during the course of what we're talking about here that would have expired i  anything else in the medical documentation that says that he was receiving benadryl at the time i thought there was something in the medical records object from february loven indicating that d and also in the apologies original motion is that he wanted to research the medication because he was not familiar with it now it doesn't take fourteen days to do that especially considering the fact that the the seventy the record reflects that he did seek approval on march fifth and that it was ordered and he received he was mr go actually receive the medication on march seventeenth so doctoring did his part he did what he could do as of march five and yes just a matter he did that fourteen days after the recommendation was made right and i concern on that cancer is that your argument is that it was in tension it was deliberately indifferent because the purpose was to save money and i guess when i'm looking at it from the overarching view i don't understand that argument because  sent him to multiple specialist specialized facilities out of his out of where he is incarcerated got in the wheelchair they've expended a lot of money why would it indicate a deliberate indifference not to spin something on a topical when you're spending all this other money on at the same time well i don't think that although we suggest that a jury could come to the conclusion that the decision was made based on cost that's not our main argument our argument is we don't know why it was delayed and there are genuine issues as to what their state of mind was and delaying in particular for doctor moishe or delaying the topical and the compression holes because on the one hand what we see is her saying what i was trying to see if these other treatments what work and on the other hand we have a response to the one of the grievances that he filed saying that there was a backlog in patients so that creates a genuine issue of material fact regarding whether her affidavit is credible and that something that there is i'm sorry and it could be both well here's the thing the recommendation came in on february twentieth it was obviously urgent enough for them to send him to the dermatologist and ask for recommendation and ask for a treatment plan and when they got that information back it was disregarded all of a sudden mr santiago's condition was not important enough to pay attention to at that moment although he was wilcher bound he was suffering from pain and intense swelling but is there any indication compression hose for any sort of improper reason to save money whatever it might be that he had so called minister oh yes i suppose well terms of not wanting to provide appropriate care to  randall dr wrinkle size and this was a conversation that was had when his sutures were being removed because he had a biopsy done to appropriately diagnose the condition  we have them having this conversation saying yes the prescriptions will be order you'll have them in a couple of days and then we don't have an affidavit from dr wrinkle to say you know this is what happened and i had to screw or i had this conference to go to and this is what was supposed to happen in my absence what we see is they were a sponsor back to mr science guy goes his grievance saying that dr testicle pain and had a previous cancer diagnosis the doctor was aware of the diagnosis but did not provide medication to treat it because he said he didn't have time to examine the prisoner at that point in time now the court and that case said that there are genuine issues asked to material facts regarding the deliberate indifference and giving those facts that the doctor said that he didn't have time that a jury could reasonably decide that a certain medication he learned during not during a follow up visit with a dermatologist as recommended by zero issue through the corrections medical center he wanted a medication that he heard he could get there is nothing in the record planers counsel indicated that benadryl wasn't the same as the topical medication there is nothing in the record that there are any difference a place nothing in the record about that there's nothing in the record that this meant that mr dr ringle was even present and made these statements to the contrary the evidence which was placed in by the defendant he wasn't there on that day and that was in the grievance document that was attached he something that the jury could go to the jury on i mean that's the issue before this case is whether there was a delay in providing this medication s s k or i guess ordering it first of all there's nothing in the record at all that this expectorant medication would what would it do how would it help it's not an analgesic there's nothing in the record about it being a pain reliever the only thing in the record is and it is has not been touched upon by the plaintiff is that the rash error thema no it's a rash conviction and how you treat the rash as you know it by this time but what's more important and what's more significant is the underlying conditions cause that can be indicative of this rash and that's why the same and so many cons console's to make sure that they were addressing anything of life threatening nature that this rash could be indicative of and in fact if you go to the very console request which was record eighteen dash eleven that plan to rely so heavily on you can tell that the consoling dermatologist is not really he's not focused on the rash there is sima no dose and what this doctor is concerned about is the leg and that's why he doesn't just recommend three different treatments he doesn't  just recommend that the try try macoun alone topical he doesn't just order the compression hose he just doesn't just order the s s k i he orders other things and he says here he says that the legs are elevated up to the thigh and this isn't this isn't a classic sign for ienner doso what he and he makes a medicine consol he wants to know why the legs are swollen and after his concern about the legs are seeing swollen not the rash which where it seems to be almost a red herring in this matter he wants to check with for proteinuria versus congestive heart failure as it is not a classic sign for the semen no do some in that is something that they ordered immediately because that's what the doctors are concerned is this guy having proteinur is he taking fluid is fluid leaving his vascular system in going out into the tissues which may be a cause for the legged thema further he says in his console which is relied so heavily on he says that these there's no fevers there's no chills there's no nazia vomiting there's no shortness of breath which was linked directly to the s s key i because that's what s s k i is for is to get stat water this out of the lungs and  monic problem going on with the person letting water go into the leg tissues it might also go into the long tissues and that's why the doctor is making a recommendation for this should it rise to the fact that water is going into the long they're looking at life threatening things there's absolutely nothing in the record there's nothing in the record that indicates s s k i relieves pain or is for any other use than an expectorant i think players council tried to say what  i was used for in their opinions but they place nothing in the record about that the only thing in the record at this juncture is that semen no doz them is a concern but what is really concerned is the endor lying figures and that you can look at it again at this what is in the record eighteen dash eleven is the doctor orders it to be id or twice a day up to three times daily up to that means if it's necessary if he started to have problems where he needs to expect a rate secretions out of his long use it there i submit to the court what the record reflects is when this came back on the twentieth these konsole to what they immediately did is h checked for proteinuria and started looking at cardiac problems and there was no need for the s s k i there was no need because he had no shortness of breath as verified by this record he had no complaints  any problems breathing and obviously the demon was sticking to his lower extremities and had progress up plainness counsel keeps saying that we sent him there to be diagnosed earth or seem a no dose and he had only been diagnosed with that why would we send him there for that we were sending him to the dermatologist so that his rash could be evaluated to see if there was anything else what is in the record is they ultimately did more treatments because the doctors at the correctional facility they have we have to take care of the whole patient we just don't deal with one thing at a time we can't just deal with a rash we have to deal with the whole patient he was already on  that's wasn't one of the reasons for the wheelchair so he could put the little leg stands up and keep his legs of the value elevated you don't want to put compression hose squeezing already had damage to his legs i mean it's just that was  a clinical judgment call that the doctors made on behalf of the of mr santiago the question is not why we did not prescribe the expectorant the question is ultimately why did we was it was it to pacify this inmate how many doses does he say take there's nothing in the record of this in fact when i first found my motion for summary judgment and the plaintiff who was then pro s e filed his memo in op all he didn't file any evidence he didn't put anything in the record he didn't point to one medical record even though he'd been given to complete full sets of medical records he just then decided to bring up issues of disk disputes there was nothing in the record and at some point in time there was a question of why didn't we show this and why didn't we show that once it was pointed out that the defendants didn't you know they didn't have to prove a negative in this case and the court two are for the s s k k i and the other medications that were ordered it wasn't appropriate at that time i mean that's why this is a recommendation and not a prescription and no point in time was this medicine prescribed prior to march fifth and then again it was prescribed pursuant to policy it was non formulary it was non life threatening a non emergency medication you have to go through approval process we can't stock every medication that's out there for inmates the state just can't do that in fact this court mentioned that in one of his earlier decisions i think the scream decision we have to stock what is medically necessary for these inmates  but doctoring going ahead and ordered it and got it timely and it was pursuant to policy and procedure and we put that out there now they're saying that is a question of fact because in fact mr santiago never in his complaint said that this was outside of the policy or procedure manual or standards he never says that all they had time once they became attorney representing mr sawney in this case a quarter lout extra discovery time they could have asked for this policy and procedure if they thought there was a question that it that we were violating it but we weren't it took a while to get it and once we got it we gave to me in fact though if you look on march third mr dr ringle comes in and he sees the recommendation and he must have evaluated the patient and seen he's not obviously not having problems breathing so he discontinued that at that time then on march fifth for whatever reason the record is absent the evidence is absent as to why you did it but he did it and it was prescribed there's no delay here it's a medication that was prescribed by the doctor at a time he obviously felt it was appropriate prior to that not only is there there there no mention within any of the medical records there's no mention you know by plaintiffs how this would have how was this there's no verifying medical evidence how back to us all the time you know maybe you want to think about this maybe you want to think about that because they're looking at one one organ of a person or their work and looking at one condition what it doctor mosher february twenty seventh she signed the order for she ordered those hoes yes along with i think prior to that though if you look at it what was going on already was they were checking for their proteinuria in his in his urine and whatnot to make sure that he you know that that wasn't a condition going on and then she did you know she put into places compression hose but even then it wasn't warranted at that time his legs were still a not according to the grievance when mr greve this they looked into it and they it was told to mr santiago to he was not physically present in the building in the institution on february twentieth when where an inmate has received more attention for a rash condition than mr santiago beyond i think beyond that there's no question that these people were trying to wrong with this person they checked on him your time zones that would tell me about dr mosher role because it seems that she really just had about a two day window according to the record where she really kind of learned about the go through the approval process the court is correct she was aware that they had been put into place because i believe mr santiago was complaining about it but then she also as i put into her had her submitted a declaration was that it was that she wasn't appropriate to implement it prior to when it was implemented those two other two and she had no control over the s s k i know your time has expired but i know you make much of the fact this is just a recommended medication case and it's the difference there's a difference between interrupting a prescribed course of treatment and something that's recommended it's recommended to come back for two things should it be implemented in prescribed and if so when regarding the clinical reasons for the dermatology consul and what happened after none of that information is contained in the affidavit that one will say none of the information but a lot of those details that she gave about other conditions that are not relevant to this appeal today are not provided we're not provided with anything by form of affidavit that supports what she just said i would assume the medical records would have shown if they were doing in your analysis for example to determine calls is of a danger the fact that there was a your analysis and the results of that would be in his medical records correct i'm not sure that's part of the record in this case i could be mistaken on that but i am i don't think so it may be contained in his complete medical file but still here we don't have anything from dr moshe or our dr wrangle saying th is what our priority was at the time and dr moshe had the opportunity to do that by way of affidavit it still doesn't change the fact that there are genuine issues of material fact and dispute regarding the seven day delay between the recommendation and dr mosher signing off on it and i do want to point out that you asked a holy of holies counsel why have there she signed off on all of the treatments and she did we cite to this in our brief she signed off on the recommended treatments all three makes the notation monitor patient for s s k i that gives us the inference that there is maybe she did have the authority to do so especially considering the fact that dr wrangle was not at the facility was on vacation what procedure do they have in place in order to make sure that things get done w dr winkel is not there the other thing that we see in a response to one of mr santiago's reman says is that they say that dr winkel handles everything that he can while he's there and when he leaves the doctor most sure and there was another assisting physician there responsible for making sure that things are done and absence there we have again a genuine issue of material fact that is very in deciding whether they disregarded the substantial risk that he was going to continue to be wilcher bound to suffer for nearly a month until he received the s s k i now a reference to  s s k i being an expectorant even dr mosier says in her affidavit that there is evidence that it could be beneficial for this to treat the underlying symptoms  now she probably is not in the best position to know whether it is the best treatment for mr santiago the dermatologist is probably in the best position to know that and that's what they recommended  also i believe and i hope i'm not mistaken on this but it seems as though the appellee said that dr wrangle must have evaluated mr science he go and determined that it wasn't necessary before he left on vacation if i'm mistaken on that then i do apologize but that's the opposite of what they argue in their brief and again it gives us a genuine issue of material fact and summary judgment is not appropriate in this